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[ { "docid": "18974365", "title": "", "text": "protected conduct, substantial or otherwise. Moreover, because this statute does not by nature fall into the disfavored category of statutes like those regulating vagrancy, cf. Flipside, 455 U.S. at 498, 102 S.Ct. at 1193 (nature of statute affects analysis), and because the Idaho Supreme Court has previously applied the statute to specific conduct, it is also not so vague as to specify “no standard of conduct at all” in any application. Therefore, Schwartzmiller is subject to the usual canons of restraint in the exercise of judicial review and may not attack section 18-6607 on its face, but only as applied to his conduct. The district court should have withheld judgment on whether section 18-6607 is vague on its face. B. In scrutinizing a statute for intolerable vagueness as applied to specific conduct, courts must “take the statute as though it read precisely as the highest court of the State has interpreted it.” Wainwright v. Stone, 414 U.S. 21, 22-23, 94 S.Ct. 190, 192, 38 L.Ed.2d 179 (1973), quoting Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 273, 60 S.Ct. 523, 525, 84 L.Ed. 744 (1940). Section 18-6607 states that [a]ny person who shall wilfully and lewdly commit any lewd or lascivious act or acts upon or with the body or any part or member thereof of a minor or child under the age of sixteen (16) years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such minor or child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of not more than life. Idaho Code § 18-6607 (1979) (now amended by Idaho Code § 18-1508 (Supp.1984)). We now examine this statute as previously interpreted by the Idaho Supreme Court. Schwartzmiller challenges the district court’s holding that section 18-6607 is constitutionally definite as applied to his convictions for the two counts of anal intercourse. He argues that State v. Wall, 73 Idaho 142, 144, 248 P.2d 222, 223 (1952), could not have warned him that “crimes against nature”" } ]

[ { "docid": "16655647", "title": "", "text": "the cumulative total of the deposits did not exceed that amount until after the second occurrence of the split deposits. The last five counts, however, were charged as felonies because the later split deposits amounted to a pattern of violations after the cumulative deposit total had exceeded $100,000. We must initially decide whether individual currency misdemeanors aggregating to more than $100,000 amount to separate felonies each time the violation in a pattern adds to a total exceeding $100,000. In United States v. Beusch, 596 F.2d 871 (9th Cir.1979) (Beusch), we concluded that a series of currency misdemeanors will “constitute felonious activity” if they form a pattern and exceed $100,000 in a twelvemonth period. Id. at 878. We also recognized the strong policy of imposing severe sanctions on persons who repeatedly violate the reporting statute. Id. at 879. But because we reversed the dismissal of the felony indictment and remanded to determine whether a pattern existed, id., we did not reach the specific issue presented in this case whether multiple felonies can be charged from one pattern. Only one circuit has squarely faced this question of statutory interpretation. In United States v. Kattan-Kassin, 696 F.2d 893 (11th Cir.1983) (Kattan-Kassin), the Eleventh Circuit concluded that “each violation could be prosecuted as a separate felony.” Id. at 898. The defendants in that case were charged with nine felony counts for a series of violations of section 1059(2), id. at 894-95, the former codification of 31 U.S.C. § 5322(b). The court analyzed the legislative history and language of the statute, and concluded that Congress intended to punish severely serious, continuing violations of section 1059. Id. at 896-97. Moreover, the court concluded that the language providing liability for transactions entered into as “part of” a pattern, rather than liability for the entire “pattern,” evidenced congressional intent to make each transaction a separate violation. Id. at 896, 898. We are not unmindful of the general rule that a single transaction with one illegal purpose cannot be divided into multiple offenses without a clear mandate from Congress. See, e.g., Bell v. United States, 349 U.S. 81, 84," }, { "docid": "16655648", "title": "", "text": "pattern. Only one circuit has squarely faced this question of statutory interpretation. In United States v. Kattan-Kassin, 696 F.2d 893 (11th Cir.1983) (Kattan-Kassin), the Eleventh Circuit concluded that “each violation could be prosecuted as a separate felony.” Id. at 898. The defendants in that case were charged with nine felony counts for a series of violations of section 1059(2), id. at 894-95, the former codification of 31 U.S.C. § 5322(b). The court analyzed the legislative history and language of the statute, and concluded that Congress intended to punish severely serious, continuing violations of section 1059. Id. at 896-97. Moreover, the court concluded that the language providing liability for transactions entered into as “part of” a pattern, rather than liability for the entire “pattern,” evidenced congressional intent to make each transaction a separate violation. Id. at 896, 898. We are not unmindful of the general rule that a single transaction with one illegal purpose cannot be divided into multiple offenses without a clear mandate from Congress. See, e.g., Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955); Kattan-Kassin, 696 F.2d at 898. We conclude, however, that the mandate in this statute is clear. The legislative history indicates that Congress intended to punish severely those who repeatedly violate this statute to prevent the statute’s fines from merely becoming a cost of running a currency laundry. See H.R.Rep. No. 975, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Ad.News, 4394, 4395-97, 4406. The Eleventh Circuit’s analysis is persuasive. If we adopted So’s interpretation of the statute, a violator who “com-mitt[ed] two violations involving more than $100,000 ... would be immune from prosecution under Section [5322(b)] for the remainder of the twelve-month period.” Kattan-Kassin, 696 F.2d at 896. Moreover, Kattan-Kassin is more consistent with our analysis in Beusch, in which we reversed a district court that had adopted So’s interpretation of the statute. Beusch, 596 F.2d at 878. Therefore, we conclude that under this statute, subsequent deposits in violation of the reporting requirements that are part of a pattern exceeding $100,000 may be charged as" }, { "docid": "12321526", "title": "", "text": "violations within a 12-month period constitutes only a single felony offense. The district court ruled that, if a pattern of illegal activity was proven, each violation constituted a felony. The Bank duly objected to this construction of the statute. Although the Bank argues that the ruling rewrote the statute in defiance of precedent, we find that the district court’s ruling comports with the plain language of the statute and its legislative history and has solid precedential support. The statute makes it a crime for a person to violate the subchapter “as part of a pattern of illegal activity.” The words “as part” can only refer to a single violation. In order for subsection (b) to apply, there must be “a pattern of illegal activity involving transactions exceeding $100,000 in any 12-month period.” A pattern, by any definition, must consist of more than one failure to report. It is not the pattern that is proscribed, but the willful violation that is a part of the pattern. As the court noted in United States v. Kattan-Kassin, 696 F.2d 893 (11th Cir.1983), an absurd result can occur if the felony is limited to the pattern of violations: “after committing two violations involving more than $100,000, a violator would be immune from prosecution [under § 5322(b)] for the remainder of the twelve-month period, subject only to minor misdemeanor penalties.” Id. at 896. There can be no doubt that the legislative history of section 5322(b) and its predecessor, 31 U.S.C. § 1059, shows that Congress intended that the section be used to punish violators severely. See United States v. Valdes-Guerra, 758 F.2d at 1414; United States v. So, 755 F.2d 1350, 1355 (9th Cir.1985); United States v. Dickinson, 706 F.2d at 92; United States v. Kattan-Kassin, 696 F.2d at 897; United States v. Beusch, 596 F.2d at 879. Severe punishment can best be assured by treating as a separate felony each violation that is “part of a pattern of illegal activity involving transactions exceeding $100,000 in any 12-month period.” 31 U.S.C. § 5322(b). Although both the Ninth and Eleventh Circuits concur that Congress intended to" }, { "docid": "23484327", "title": "", "text": "v. Kattan-Kassin, 696 F.2d 893, 895 (11th Cir.1983). Thus, “[ujnless exceptional circumstances dictate otherwise, ‘[wjhen we find the terms of a statute unambiguous, judicial inquiry is complete.’ ” Burlington N.R.R. v. Oklahoma Tax Comm’n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404 (1987) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701-02, 66 L.Ed.2d 633 (1981)). Where the statutory language is ambiguous, or application of the plain meaning of the statute would lead to absurd results, then a court may look to legislative history in an effort to determine the intent of Congress. Kattan-Kassin, 696 F.2d at 895. The plainer the statutory language, however, the more convincing contrary legislative history must be in order to support a reading of the statute which departs from its plain language. See Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482-83, 83 L.Ed.2d 472 (1984) (“only the most extraordinary showing of contrary intentions ... would justify a limitation on the ‘plain meaning’ of the statutory language.”); United States v. United States Steel Corp., 482 F.2d 439, 444 (7th Cir.), cert. denied, 414 U.S. 909, 94 S.Ct. 229, 38 L.Ed.2d 147 (1973). Thus, the party who seeks to convince a court to adopt a reading of a statute that is at odds with its plain meaning, labors under a heavy burden. The United States maintains that the qui tam action brought by Williams was properly dismissed because a government employee is barred by section 3730(e)(4)(A) of the False Claims Act from bringing such an action. Section 3730(e)(4)(A) states, (e) Certain Actions Barred.— (4)(A) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. 31 U.S.C. § 3730(e)(4)(A) (1988). The United States argues first, that Williams’s qui tam action" }, { "docid": "23484326", "title": "", "text": "doing, we must also decide the broader question of whether the False Claims Act prohibits government employees from filing qui tam suits based upon information acquired in the course of their government employment. Because we are called upon to review the district court’s interpretation of a statute, our review is de novo. Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d 154, 157 (11th Cir.1990); Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1227 (11th Cir.1990). “[T]he starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Prod. Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); see also United States v. Rush, 874 F.2d 1513, 1514 (11th Cir.1989) (citations omitted). Unless the statutory language is ambiguous or would lead to absurd results, the plain meaning of the statute must control. Blue Cross & Blue Shield v. Weitz, 913 F.2d 1544, 1548 (11th Cir.1990); United States v. Kattan-Kassin, 696 F.2d 893, 895 (11th Cir.1983). Thus, “[ujnless exceptional circumstances dictate otherwise, ‘[wjhen we find the terms of a statute unambiguous, judicial inquiry is complete.’ ” Burlington N.R.R. v. Oklahoma Tax Comm’n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404 (1987) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701-02, 66 L.Ed.2d 633 (1981)). Where the statutory language is ambiguous, or application of the plain meaning of the statute would lead to absurd results, then a court may look to legislative history in an effort to determine the intent of Congress. Kattan-Kassin, 696 F.2d at 895. The plainer the statutory language, however, the more convincing contrary legislative history must be in order to support a reading of the statute which departs from its plain language. See Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482-83, 83 L.Ed.2d 472 (1984) (“only the most extraordinary showing of contrary intentions ... would justify a limitation on the ‘plain meaning’ of the statutory language.”); United States v." }, { "docid": "12321521", "title": "", "text": "distinguish between a pattern of conduct by the defendant McDonough and a pattern of activity by the Bank. We reject both contentions. There are three cases construing “a pattern of illegal activity” under the Act. In United States v. Dickinson, 706 F.2d 88 (2d Cir.1983), the court appeared to adopt the following definition: “the pattern of illegal activity must involve repeated violations of the Act itself, related to each other and together involving more than $100,000.” Id. at 91 (emphasis added). The court stated later: “The requirement that the violations be part of a pattern merely excludes cases where the violations are isolated events and not part of a common or systematic scheme.” Id. at 92. The Ninth Circuit in United States v. Beusch, 596 F.2d 871 (9th Cir.1979), discussed the meaning of pattern under 31 U.S.C. § 1059, the predecessor statute to § 5322(b): First, the plain language of subsection (2) of § 1059 indicates to us that a series of currency transfers which, by themselves, constitute only misdemeanors, may also constitute felonious activity if they (a) show a pattern of illegal activity, and (b) exceed $100,000 over a 12-month period. In contrast to subsection (1) of § 1059, which requires other illegal activity (i.e., activity not involving violations of the Bank Secrecy Act), subsection (2) evidences no similar requirements. We infer, therefore, that a series of misdemeanor violations of the act may, by themselves, call forth the increased penalties of subsection (2). Id. at 878 (emphasis added). The most recent case we could find on the subject is United States v. Valdes-Guerra, 758 F.2d 1411 (11th Cir.1985). The court stated: While there is little caselaw construing the phrase “pattern of illegal activity,” both circuits which have directly con fronted the issue have held that a series of currency reporting violations which, by themselves, constitute only misdemeanors may also be felonious if they show a pattern of illegal activity and exceed $100,000.00 over a twelve-month period. United States v. Dickinson, 706 F.2d 88, 91-98 (2d Cir.1983); United States v. Beusch, 596 F.2d 871, 878-79 (9th Cir.1979). We agree with" }, { "docid": "12321522", "title": "", "text": "if they (a) show a pattern of illegal activity, and (b) exceed $100,000 over a 12-month period. In contrast to subsection (1) of § 1059, which requires other illegal activity (i.e., activity not involving violations of the Bank Secrecy Act), subsection (2) evidences no similar requirements. We infer, therefore, that a series of misdemeanor violations of the act may, by themselves, call forth the increased penalties of subsection (2). Id. at 878 (emphasis added). The most recent case we could find on the subject is United States v. Valdes-Guerra, 758 F.2d 1411 (11th Cir.1985). The court stated: While there is little caselaw construing the phrase “pattern of illegal activity,” both circuits which have directly con fronted the issue have held that a series of currency reporting violations which, by themselves, constitute only misdemeanors may also be felonious if they show a pattern of illegal activity and exceed $100,000.00 over a twelve-month period. United States v. Dickinson, 706 F.2d 88, 91-98 (2d Cir.1983); United States v. Beusch, 596 F.2d 871, 878-79 (9th Cir.1979). We agree with those courts that the legislative history of section 5322(b) evinces an intent not only to deal seriously with reporting violations undertaken in conjunction with violations of other federal laws, but also to punish as a felony violations undertaken in a repeated manner which “involve very large sums of money. ” H.R.Rep. No. 91-975, 91st Cong., 2d Sess. (1970), 1970 U.S. Code Cong. & Ad.News 4394, 4406. Congress intended that “serious violations under this title” could not “be shrugged off as a mere cost of doing business.” Id. (emphasis added); Dickinson, 706 F.2d at 92. Id. at 1414 (emphasis added). The common theme running through these three cases is that a pattern consists of repeated violations or a series of violations. The court’s instruction clearly embodied this. While the instruction might have been more accurate if it defined pattern as repeated and related violations of the Act, the omission of the word related does not even come close to plain error. Under the evidence adduced, it was clear that the repeated failures by the Bank to" }, { "docid": "16655649", "title": "", "text": "75 S.Ct. 620, 622, 99 L.Ed. 905 (1955); Kattan-Kassin, 696 F.2d at 898. We conclude, however, that the mandate in this statute is clear. The legislative history indicates that Congress intended to punish severely those who repeatedly violate this statute to prevent the statute’s fines from merely becoming a cost of running a currency laundry. See H.R.Rep. No. 975, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Ad.News, 4394, 4395-97, 4406. The Eleventh Circuit’s analysis is persuasive. If we adopted So’s interpretation of the statute, a violator who “com-mitt[ed] two violations involving more than $100,000 ... would be immune from prosecution under Section [5322(b)] for the remainder of the twelve-month period.” Kattan-Kassin, 696 F.2d at 896. Moreover, Kattan-Kassin is more consistent with our analysis in Beusch, in which we reversed a district court that had adopted So’s interpretation of the statute. Beusch, 596 F.2d at 878. Therefore, we conclude that under this statute, subsequent deposits in violation of the reporting requirements that are part of a pattern exceeding $100,000 may be charged as felonies once the $100,000 threshold has been reached. IV Finally, So argues that because section 5322(b) is subject to different interpretations, it is unconstitutionally vague on its face. But the statute is subject only to “as applied” review because section 5322(b) is not impermissibly vague in all its applications. See Schwartzmiller v. Gardner, 752 F.2d 1341, 1346-47 (9th Cir.1984). Even So admits the statute is sufficiently definite to subject him to one felony count. So’s argument that the statute provides insufficient notice for multiple felony convictions lacks merit because of our reading of the legislative history as clearly mandating that result. Thus, even if the bare language of the statute leaves some doubt, the language as narrowed by the legislative history clearly envisioned his conduct. See Kattan-Kassin, 696 F.2d at 895 (summarily rejecting a void for vagueness challenge to section 1059(2)). AFFIRMED." }, { "docid": "16655645", "title": "", "text": "whether the defendant showed any reluctance; and (5) the nature of the government’s inducement. See United States v. Diggs, 649 F.2d 731, 739 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981); Reynoso, 548 F.2d at 1336. The record indicates a dispute on several of these factors which the jury properly resolved. First, the evidence suggests that Lee, rather than the government, initially suggested criminal activity and initially contacted the Hong Kong bank. Moreover, So negotiated a personal fee for laundering services, thus supporting an inference of a profit motive. The most important factor, however, is the defendant’s lack of reluctance. See, e.g., Reynoso, 548 F.2d at 1336 & n. 11. So appears to have entered the transactions with relish and expertise, providing technical advice and documentation, while boasting of his ability to launder money for smugglers in various parts of the world. The only party who displayed reluctance, Chan, was acquitted. On the basis of the disputed issues of fact in the record, therefore, the issue of entrapment was properly decided by the trier of fact. The evidence was more than ample for the jury to find against So on this issue. Ill So argues that his convictions for five felonies under 31 U.S.C. §§ 5313 and 5322(b) must be reduced to misdemeanors. Section 5322(a) treats willful violations of the currency reporting laws as misdemeanors. See 18 U.S.C. § 1(1), (2). Section 5322(b), however, treats them as felonies if they are a “part of a pattern of illegal activity involving transactions of more than $100,000 in a 12-month period.” Section 5322(b) is a recodification of 31 U.S.C. § 1059, see 31 U.S.C. § 5322 note, and was not intended to and did not change the substance of the original section 1059. See United States v. Booky, 733 F.2d 1335, 1337 n. 3 (9th Cir.1984); H.R.Rep. No. 651, 97th Cong., 2d Sess. 3, reprinted in 1982 U.S.Code Cong. & Ad.News 1895,1897. The first two substantive counts of So’s indictment were charged as misdemeanors because neither of the first two split deposits individually exceeded $100,000 and" }, { "docid": "22915588", "title": "", "text": "Currency Transaction Report (in violation of 31 U.S.C. § 5313 (1982)) and failure to file a Report of International Transportation of Currency or Monetary Instruments (in violation of 31 U.S.C. § 5316 (1982) (amended 1984)). Under § 5322(b) of the Currency and Foreign Transactions Reporting Act, 31 U.S.C. § 5322(b) (1982), each violation was enhanced to felony status because done willfully and “while violating another law of the United States or as part of a pattern of illegal activity involving transactions of more than $100,000 in a 12-month period.” As enhanced, each violation carried a maximum penalty of a $500,000 fine, 5 years of imprisonment, or both. The Government recommended that DiTommaso receive a 5-year prison term. Nonetheless, the court sentenced him to 5-year terms for each Currency Act violation, to be served consecutively. Thus, DiTommaso received an aggregate prison sentence of 10 years. Contrary to defendant’s assertion, imposition of cumulative sentences, in the circumstances of this case, violated neither the Currency Act nor the Double Jeopardy Clause of the Fifth Amendment. Under DiTommaso’s reading of the statute, all Currency Act violations occurring during a twelve-month period would be aggregated into a single felony, a result we consider wholly unwarranted. Further, the statute converts to felonies violations committed “as part of & pattern of illegal activity involving transactions of more than $100,000 in a 12-month period.” 31 U.S.C. § 5322(b) (ejnphasis added). DiTommaso’s interpretation would render superfluous the phrase “as part of.” Appellant’s reading is also unsupported by the legislative history. See United States v. Kattan-Kassin, 696 F.2d 893 (11th Cir.1983); United States v. So, 755 F.2d 1350, 1355 (9th Cir.1985). In a word, DiTommaso was convicted of two separate Currency Act violations involving different transactions. Because this case does not involve multiple punishments for the same offense, we conclude that the consecutive 5-year terms were lawful, permitted by Congress, and pose no constitutional problems. Cf. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). CONCLUSION The result is that the convictions and sentences of the four appellants are all AFFIRMED. . The" }, { "docid": "23379015", "title": "", "text": "even if she falls within the regulation’s definition of “financial institution,” this regulatory definition impermissibly exceeds the bounds of the Act’s definition of financial institution. Cf 5 U.S.C. § 706(2)(C). Assuming that she is appropriately considered a “financial institution,\" Mouzin further argues that she qualifies as a “nonbank financial institution” under the regulations. The regulations exempt from the reporting requirements all transactions between nonbank financial institutions and commercial banks. 31 C.F.R. § 103.22(b)(l)(iii). The defendant also challenges the sufficiency of the evidence on her five felony currency counts. Finally, the defendant takes exception to the imposition of five felony convictions, rather than one. In response, the government argues that defendant Mouzin qualifies as a “financial institution” under the Act and the regulations promulgated thereunder. The government admits that the defendant, as an individual, constitutes a “nonbank financial institution” under the regulations. The government denies that the defendant is thereby exempt from reporting the charged transactions, however, because these transactions did not involve a commercial bank, as required by the regulations. See 31 C.F.R. § 103.33(b)(l)(iii). The government also rejects the defendant’s arguments regarding the number of counts the defendant should be charged with under 31 U.S.C. § 1059. See United States v. Kattan-Kassin, 696 F.2d 893, 895-96 (11th Cir.1983) (construing § 1059); see also United States v. So, 755 F.2d 1350, 1354-55 (9th Cir.1985) (construing § 5322). Finally, the government asserts that the evidence was sufficient on all five of the defendant’s currency reporting convictions. Defendant Mouzin contends that she is not a “financial institution” within the meaning of the CFTRA. The Act defines the term to include various types of legitimate banking and business entities. See 31 U.S.C. § 1052(e) (1976) (current version at 31 U.S.C. § 5312(a)(2) (1982)). The Secretary is also empowered to promulgate regulations defining a “financial institution” as any “type of business or institution performing similar, related, or substitute functions” to those listed in the Act. 31 U.S.C. § 1052(e)(21) (current version at 31 U.S.C. § 5312(a)(2)(U) (1982) (“another business or agency” performing similar duties)). By regulation, the Secretary has defined the term “financial institution”" }, { "docid": "23379016", "title": "", "text": "The government also rejects the defendant’s arguments regarding the number of counts the defendant should be charged with under 31 U.S.C. § 1059. See United States v. Kattan-Kassin, 696 F.2d 893, 895-96 (11th Cir.1983) (construing § 1059); see also United States v. So, 755 F.2d 1350, 1354-55 (9th Cir.1985) (construing § 5322). Finally, the government asserts that the evidence was sufficient on all five of the defendant’s currency reporting convictions. Defendant Mouzin contends that she is not a “financial institution” within the meaning of the CFTRA. The Act defines the term to include various types of legitimate banking and business entities. See 31 U.S.C. § 1052(e) (1976) (current version at 31 U.S.C. § 5312(a)(2) (1982)). The Secretary is also empowered to promulgate regulations defining a “financial institution” as any “type of business or institution performing similar, related, or substitute functions” to those listed in the Act. 31 U.S.C. § 1052(e)(21) (current version at 31 U.S.C. § 5312(a)(2)(U) (1982) (“another business or agency” performing similar duties)). By regulation, the Secretary has defined the term “financial institution” to include a “person who engages as a business in dealing in or exchanging currency as, for example, a dealer in foreign exchange or a person engaged primarily in the cashing of cheeks” and a “person engaged in the business of transmitting funds abroad.” 31 C.F.R. § 103.11. Mouzin argues that the Act limits the reporting obligation to financial institutions which are legitimate financial entities. The defendant is correct in asserting that the Act only lists legitimate commercial enterprises in its definition of “financial institutions.” In enacting the statutory definition of “financial institution,” the Ninety-First Congress clearly directed the reporting obligation to legitimate commercial institutions. See H.R.Rep. No. 91-975, 91st Cong.2d Sess., reprinted in 1970 U.S. Code Cong. & Ad.News 4394, 4404-05 (CFTRA intended to thwart diversion of cash to foreign secrecy jurisdictions; facilitate supervision of financial institutions subject to federal supervision; aid law enforcement; and, provide statistics for monetary and economic policy. Secretary authorized “to require any class of domestic financial institutions to maintain appropriate procedures ... [because] where a financial institution fails to" }, { "docid": "12321520", "title": "", "text": "be greater than $100,000, so long as the total of the transactions is in any 12-month period. It’s a shifting period, so you can look at any period that you want. And if within that period, transactions of more than $100,000 occurred and there was a willful failure to file with respect to them, then this fourth element has been satisfied. So, if you find that a series of transactions occurred that required the filing of reports and that the total of such transactions in any 12-month period involved more than $100,000, this element is satisfied, even if no one transaction itself exceeded 100,000 dollars. It is kind of a fillip on the multiple business. So, if you find that a reportable transaction occurred, that no report was filed, that transaction may be considered as part of the pattern if others occurred and if in any 12-month period the total was more than $100,000. The Bank attacks the instruction on two grounds: that the definition of pattern is impermissibly broad; and the court failed to distinguish between a pattern of conduct by the defendant McDonough and a pattern of activity by the Bank. We reject both contentions. There are three cases construing “a pattern of illegal activity” under the Act. In United States v. Dickinson, 706 F.2d 88 (2d Cir.1983), the court appeared to adopt the following definition: “the pattern of illegal activity must involve repeated violations of the Act itself, related to each other and together involving more than $100,000.” Id. at 91 (emphasis added). The court stated later: “The requirement that the violations be part of a pattern merely excludes cases where the violations are isolated events and not part of a common or systematic scheme.” Id. at 92. The Ninth Circuit in United States v. Beusch, 596 F.2d 871 (9th Cir.1979), discussed the meaning of pattern under 31 U.S.C. § 1059, the predecessor statute to § 5322(b): First, the plain language of subsection (2) of § 1059 indicates to us that a series of currency transfers which, by themselves, constitute only misdemeanors, may also constitute felonious activity" }, { "docid": "12321525", "title": "", "text": "at 24, and then fails to object to the instruction given, one of two conclusions can be drawn: that the defendant deliberately left the matter to the discretion of the trial judge; or it decided to play the waiting game in the hope of getting an appeal-able error without committing itself. Since we uphold the jury instruction, no more need be said. B. Conviction of Thirty-One Felonies This issue, which is an extension of the previous one, also involves the construction of 31 U.S.C. § 5322(b). At the time of indictment, the penalty for a violation of § 5322(b) was a fine of $500,000 and/or imprisonment for not more than five years. Section 5322(a) made a violation a misdemeanor with a fine of not more than $1,000 and/or imprisonment for not more than one year. The question is whether each of the thirty-one violations that was “part of a pattern of illegal activity involving transactions of more than $100,000 in a 12-month period” may be separately prosecuted as a felony or whether a pattern of violations within a 12-month period constitutes only a single felony offense. The district court ruled that, if a pattern of illegal activity was proven, each violation constituted a felony. The Bank duly objected to this construction of the statute. Although the Bank argues that the ruling rewrote the statute in defiance of precedent, we find that the district court’s ruling comports with the plain language of the statute and its legislative history and has solid precedential support. The statute makes it a crime for a person to violate the subchapter “as part of a pattern of illegal activity.” The words “as part” can only refer to a single violation. In order for subsection (b) to apply, there must be “a pattern of illegal activity involving transactions exceeding $100,000 in any 12-month period.” A pattern, by any definition, must consist of more than one failure to report. It is not the pattern that is proscribed, but the willful violation that is a part of the pattern. As the court noted in United States v. Kattan-Kassin, 696" }, { "docid": "21552660", "title": "", "text": "implicated when: A person willfully violates] this subchap-ter or a regulation prescribed under this subchapter (except section 5315 of this title or a regulation prescribed under section 5315), while violating another law of the United States or as part of a pattern of illegal activity involving transactions of more than $100,000 in a 12-month period.... 31 U.S.C. § 5322(b). In the case at bar, the government charged the defendants with felonious violations, alleging that the acts named in the indictment constituted a “pattern of illegal activity involving transactions of more than $100,000 in a 12-month period.” The trial judge instructed the jury that it could find there was a pattern of illegal activity if it determined “beyond a reasonable doubt that there were repeated and related violations” of the Act. The defendants argue that the government has failed to produce any evidence that could support a finding that the transactions named in the indictment formed a “pattern of illegal activity.” We cannot agree. In United States v. Bank of New England, N.A., 821 F.2d 844 (1st Cir.), cert. denied, 484 U.S. 943, 108 S.Ct. 328, 98 L.Ed.2d 356 (1987), we dealt with the issue of what constitutes a “pattern of illegal activity” under 31 U.S.C. § 5322(b). We affirmed the felony convictions of the Bank for failing to file CTRs for thirty-one currency transactions, each involving the same individual customer and the same form of currency transfer. In interpreting the meaning of the phrase “pattern of illegal activity,” we examined the limited case law on point. See United States v. Valdes-Guerra, 758 F.2d 1411, 1414 (11th Cir.1985); United States v. Dickinson, 706 F.2d 88, 92 (2d Cir.1983); United States v. Beusch, 596 F.2d 871, 878 (9th Cir.1979) (interpreting same language in 31 U.S.C. § 5322(b)’s predecessor statute). We concluded that to form a pattern under the Act, the transactions must be “repeated and related.” Bank of New England, 821 F.2d at 853 (emphasis in original). Although the trial judge in that case had charged the jury that a pattern could be established by proving repeated violations, she did not instruct" }, { "docid": "16655646", "title": "", "text": "properly decided by the trier of fact. The evidence was more than ample for the jury to find against So on this issue. Ill So argues that his convictions for five felonies under 31 U.S.C. §§ 5313 and 5322(b) must be reduced to misdemeanors. Section 5322(a) treats willful violations of the currency reporting laws as misdemeanors. See 18 U.S.C. § 1(1), (2). Section 5322(b), however, treats them as felonies if they are a “part of a pattern of illegal activity involving transactions of more than $100,000 in a 12-month period.” Section 5322(b) is a recodification of 31 U.S.C. § 1059, see 31 U.S.C. § 5322 note, and was not intended to and did not change the substance of the original section 1059. See United States v. Booky, 733 F.2d 1335, 1337 n. 3 (9th Cir.1984); H.R.Rep. No. 651, 97th Cong., 2d Sess. 3, reprinted in 1982 U.S.Code Cong. & Ad.News 1895,1897. The first two substantive counts of So’s indictment were charged as misdemeanors because neither of the first two split deposits individually exceeded $100,000 and the cumulative total of the deposits did not exceed that amount until after the second occurrence of the split deposits. The last five counts, however, were charged as felonies because the later split deposits amounted to a pattern of violations after the cumulative deposit total had exceeded $100,000. We must initially decide whether individual currency misdemeanors aggregating to more than $100,000 amount to separate felonies each time the violation in a pattern adds to a total exceeding $100,000. In United States v. Beusch, 596 F.2d 871 (9th Cir.1979) (Beusch), we concluded that a series of currency misdemeanors will “constitute felonious activity” if they form a pattern and exceed $100,000 in a twelvemonth period. Id. at 878. We also recognized the strong policy of imposing severe sanctions on persons who repeatedly violate the reporting statute. Id. at 879. But because we reversed the dismissal of the felony indictment and remanded to determine whether a pattern existed, id., we did not reach the specific issue presented in this case whether multiple felonies can be charged from one" }, { "docid": "12321527", "title": "", "text": "F.2d 893 (11th Cir.1983), an absurd result can occur if the felony is limited to the pattern of violations: “after committing two violations involving more than $100,000, a violator would be immune from prosecution [under § 5322(b)] for the remainder of the twelve-month period, subject only to minor misdemeanor penalties.” Id. at 896. There can be no doubt that the legislative history of section 5322(b) and its predecessor, 31 U.S.C. § 1059, shows that Congress intended that the section be used to punish violators severely. See United States v. Valdes-Guerra, 758 F.2d at 1414; United States v. So, 755 F.2d 1350, 1355 (9th Cir.1985); United States v. Dickinson, 706 F.2d at 92; United States v. Kattan-Kassin, 696 F.2d at 897; United States v. Beusch, 596 F.2d at 879. Severe punishment can best be assured by treating as a separate felony each violation that is “part of a pattern of illegal activity involving transactions exceeding $100,000 in any 12-month period.” 31 U.S.C. § 5322(b). Although both the Ninth and Eleventh Circuits concur that Congress intended to punish severely those who repeatedly violate the Act’s reporting requirements, they differ as to how best to implement that legislative intent. The Ninth Circuit does not regard any transaction as felonious until the $100,000 threshold has been reached, United States v. So, 755 F.2d at 1355; thereafter, every transaction is treated as a felony. The Eleventh Circuit, as we have already noted, treats every transaction as felonious if the $100,000 threshold is reached within a twelve-month period. Thus, under the Ninth Circuit’s approach, there would be twenty-one felonies; under the Eleventh Circuit’s approach, there would be thirty-one felonies. No matter which approach we adopt, the verdict stands since the fine levied against the Bank was far below that which could have been imposed under either approach. Both the Ninth Circuit and the Eleventh Circuit have advanced plausible constructions of the Act’s felony provision. Because we are convinced that Congress wished to impose the severest possible penalty on repeated violators of the Act, we adopt the approach taken by the Eleventh Circuit in Kattan-Kassin: if a" }, { "docid": "12321528", "title": "", "text": "punish severely those who repeatedly violate the Act’s reporting requirements, they differ as to how best to implement that legislative intent. The Ninth Circuit does not regard any transaction as felonious until the $100,000 threshold has been reached, United States v. So, 755 F.2d at 1355; thereafter, every transaction is treated as a felony. The Eleventh Circuit, as we have already noted, treats every transaction as felonious if the $100,000 threshold is reached within a twelve-month period. Thus, under the Ninth Circuit’s approach, there would be twenty-one felonies; under the Eleventh Circuit’s approach, there would be thirty-one felonies. No matter which approach we adopt, the verdict stands since the fine levied against the Bank was far below that which could have been imposed under either approach. Both the Ninth Circuit and the Eleventh Circuit have advanced plausible constructions of the Act’s felony provision. Because we are convinced that Congress wished to impose the severest possible penalty on repeated violators of the Act, we adopt the approach taken by the Eleventh Circuit in Kattan-Kassin: if a pattern of illegal activity involving transactions exceeding $100,000 is proven, each violation is a felony. We, therefore, affirm the district court’s ruling and find no error in the jury instruction on this issue. IV. WILLFULNESS OF THE BANK’S CONDUCT A. The Trial Court’s Instruction on Willfulness Criminal liability under 31 U.S.C. § 5322 only attaches when a financial institution “willfully” violates the CTR filing requirement. A finding of willfulness under the Reporting Act must be supported by “proof of the defendant’s knowledge of the reporting requirements and his specific intent to commit the crime.” United States v. Hernando Ospina, 798 F.2d 1570, 1580 (11th Cir.1986); United States v. Eisenstein, 731 F.2d 1540, 1543 (11th Cir.1984). Willfulness can rarely be proven by direct evidence, since it is a state of mind; it is usually established by drawing reasonable inferences from the available facts. United States v. Wells, 766 F.2d 12, 20 (1st Cir.1985). The Bank contends that the trial court’s instructions on knowledge and specific intent effectively relieved the government of its responsibility to prove that" }, { "docid": "22915589", "title": "", "text": "of the statute, all Currency Act violations occurring during a twelve-month period would be aggregated into a single felony, a result we consider wholly unwarranted. Further, the statute converts to felonies violations committed “as part of & pattern of illegal activity involving transactions of more than $100,000 in a 12-month period.” 31 U.S.C. § 5322(b) (ejnphasis added). DiTommaso’s interpretation would render superfluous the phrase “as part of.” Appellant’s reading is also unsupported by the legislative history. See United States v. Kattan-Kassin, 696 F.2d 893 (11th Cir.1983); United States v. So, 755 F.2d 1350, 1355 (9th Cir.1985). In a word, DiTommaso was convicted of two separate Currency Act violations involving different transactions. Because this case does not involve multiple punishments for the same offense, we conclude that the consecutive 5-year terms were lawful, permitted by Congress, and pose no constitutional problems. Cf. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). CONCLUSION The result is that the convictions and sentences of the four appellants are all AFFIRMED. . The trial court did not make any explicit findings of fact supported by the evidence. However, because the Government’s overall version of the facts is entirely consistent with the jury verdicts and is supported by substantial evidence of record, we generally follow it for purposes of this appeal because obviously it is the evidence most favorable to the Government. . Their participation in various drug-related transactions and travels will be discussed in greater detail later in this opinion to the extent necessary to illuminate the disposition of their appeals. . Rudolfo Risatti, among others, signed Turano’s bail bond as surety. . Salvatore Messina was tried together with them but was acquitted. . This argument, also advanced by co-defendants Risatti and Silvetti, is treated infra under Section III-D. . For a complete recitation of the facts behind the trial schedule in this case, see United States v. Molina-Chacon, 625 F.Supp. at 338-42 (E.D.N.Y.1985). . Section 3161(h)(7) mandates the exclusion of \"[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to" }, { "docid": "9873218", "title": "", "text": "for its benefit in the performance of the agent’s general duties. “Acts included within the scope of the agent’s authority are not only those that have been specifically authorized by the corporation but also those which a reasonable person would reasonably assume such an agent or employee the authority to do. [sic] [The challenged instruction] . “You may, however, consider the corporate policies and instructions as one of the circumstances along with any other circumstances that you find to be significant in determining what the authority of the agent actually was and whether the agent was acting on behalf of the corporation. “In order to be acting within the scope of his authority, the employee must be found to be acting on behalf of the corporation with the purpose of benefiting the corporation or serving some corporate purpose.” BRIGHT, Circuit Judge, concurring in part, dissenting in part. While I concur in the affirmance of the misdemeanor convictions of the defendants, Willi Beusch and Deak & Company of California (Deak), I would reject the Government’s appeal. The Government, unsatisfied with obtaining 377 misdemeanor convictions against defendants, requests reinstatement of a four-count felony indictment dismissed by the district court. The felony charges arose out of the same conduct as the misdemeanor charges — the willful failure of Deak and Beusch, on 377 occasions, to report their receipt of currency exceeding $5,000 from outside the United States. Such conduct violates the foreign financial transaction reporting requirements of section 231 of the Bank Secrecy Act of 1970 (the Act) and clearly amounts to misdemeanor offenses under 31 U.S.C. § 1058 (1976). The Government contends that these reporting violations, which involved transactions totaling more than $100,000 in each of four twelve-month periods, may be aggregated to form four felony violations “committed as part of a pattern of illegal activity involving transactions exceeding $100,000 in a twelve-month period.” 31 U.S.C. § 1059(2) (1976) (emphasis added). A reading of the statute in light of the statutory history convinces me, contrary to the majority view, that several reporting violations constitute several misdemeanors and nothing more when, as in" } ]

[ { "docid": "16503380", "title": "", "text": "Court in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), articulated two tests it uses to determine if a restriction is content-based. Although the Supreme Court was sharply divided, it did not divide on the issue of what constitutes a content-based regulation. The first test is whether Gladstone gives commercial speech a greater degree of protection than noncommercial speech. If it does then the New Sign Ordinance is content-based and the court cannot analyze the thirty-day durational limitation and the seven-day removal requirement under a time, place and manner standard. Id., at 513, 101 S.Ct. at 2895, 69 L.Ed.2d at 818. The second test is whether the section “distinguishes ... between permissible and impermissible signs ... by reference to their content.” Id., at 516, 101 S.Ct. at 2897, 69 L.Ed.2d at 820. Section 25-45 fails both tests and is thus, not content-neutral. First, Gladstone favors commercial speech over noncommercial speech. Gladstone argues that it favors noncommercial speech over commercial speech because some commercial signs are subject to application, permit, fee or insurance requirements, but political signs are not. Gladstone does require some commercial signs to undergo several requirements that political signs do not. However, in residential areas, a homeowner may post a “For Sale” or “For Rent” sign indefinitely and post a construction sign for up to ninety days prior to construction without having to meet the application, permit, fee or insurance requirements. A homeowner may also post a sign advertising a garage sale although the parties have not provided the court with information as to whether such signs must meet any administrative requirements. Further, as discussed earlier, § 25^15 imposes a ban on political speech except during the thirty-day period before the election while allowing commercial owners to post permanent signs indefinitely. The New Sign Ordinance, thus does treat some commercial signs more favorably than political signs. In regards to removal, the political sign must be removed within seven days of the election, but a construction sign may remain standing an additional three days, or a total of ten days." } ]

[ { "docid": "3783818", "title": "", "text": "speech was not viewpoint-discriminatory, the court concluded that the ordinance could be justified as a reasonable time, place, and manner restriction. 975 F.2d at 1509-10. Analysis of the constitutionality of such restrictions on protected speech, of course, depends not only on whether or not the restrictions are viewpoint-discriminatory, but also on whether they are “content-neutral” or \"content-based.” See, e.g., Burson v. Freeman, — U.S. -, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992); Boos v. Barry, 485 U.S. 312, 319, 108 S.Ct. 1157, 1162-63, 99 L.Ed.2d 333 (1988). Furthermore, Messer is distinguishable from both this case and Metromedia because, unlike either the San Diego ordinance in Metromedia or Chapter 11 of the Delaware Code, the exemptions of the Douglasville sign ordinance were not exemptions from a general ban of all off-premise signage; rather, they were exemptions from permit requirements and fees. 975 F.2d at 1513. . See, supra, note 1, regarding modifying the district court's order to except directional and warning signs. . In Discovery Network, the Court held that there was no close fit between a ban on newsracks containing commercial handbills, which did not apply to newsracks containing newspapers, and the City of Cincinnati's safety and aesthetics interests. -U.S. at-, 113 S.Ct. at 1511. The Court rejected the city's contention that the asserted governmental interests justified the discrimination against commercial use of news-racks that were no more harmful than permitted noncommercial newsracks. Because the ban was not content-neutral, its enforcement could not constitute a valid time, place and manner restriction of protected speech. The Discovery Network Court explicitly distinguished Metromedia on the grounds that the regulation at issue in Metromedia did not draw a distinction between commercial and noncommercial offsite billboards; with a few exceptions, the regulation in Metromedia (and Chapter 11 in this case) essentially banned all offsite billboards. . As I noted earlier, I concur in reversing the judgment of the district court denying the individual defendants' motions for summary judgment based on their assertions of qualified immunity." }, { "docid": "4823283", "title": "", "text": "varied depending upon the level of police protection required for an event; and determination of the fee depended in part on “the amount of hostility likely to be created by the speech based on its content.” 505 U.S. at 134, 112 S.Ct. 2395 (“Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.”). “Listeners’ reaction to speech,” the Court held, “is not a content-neutral basis for regulation.” Id. The State has no legitimate interest in restricting communications simply based on a “desire to avoid the discomfort and unpleasantness that always accompanies an unpopular view point.” Grayned, 408 U.S. at 117, 92 S.Ct. 2294. See also Forsyth, 505 U.S. at 134-35, 112 S.Ct. 2395 (“Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”); Boos, 485 U.S. at 321, 108 S.Ct. 1157; Brown v. Louisiana, 383 U.S. 131, 133 n. 1, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966). Similarly, in Boos, the Court struck down an ordinance banning displays within 500 feet of an embassy that bring a foreign government into disrepute. 485 U.S. at 315, 319, 329, 108 S.Ct. 1157. In defending the ordinance, the government argued that the ban was not content-based because its justification — protecting the dignity of foreign diplomats — was a content-neutral concern over the “secondary effects” of some kinds of speech. Id. at 320-21, 108 S.Ct. 1157. The Court was not persuaded: “The emotive impact of speech on its audience is not a ‘secondary effect.’ ” Id. at 321, 108 S.Ct. 1157. Likewise, Plaintiffs contend that the “adversely affect” clause in the Michigan funeral protest statute is not content-neutral. A person’s expressive activity could easily be said to “adversely affect” a funeral solely due to the content of that person’s message and its effect on others at the funeral. Plaintiffs emphasize that Defendants have already argued that they were justified in arresting the Lowdens because they were “entitle [sic] to consider the possibility of an adverse reaction by others” to the messages on" }, { "docid": "22393223", "title": "", "text": "a foreign government, are permitted. See D. C. Code § 22-1116 (1981). Both the majority and dissent in the Court of Appeals accepted this common sense reading of the statute and concluded that the display clause was content based. The majority indicated, however, that it could be argued that the regulation was not content based. 255 U. S. App. D. C., at 38, n. 15, 798 F. 2d, at 1469, n. 15. Both respondents and the United States have now made such an argument in this Court. They contend that the statute is not content based because the government is not itself selecting between viewpoints; the permissible message on a picket sign is determined solely by the policies of a foreign government. We reject this contention, although we agree the provision is not viewpoint based. The display clause determines which viewpoint is acceptable in a neutral fashion by looking to the policies of foreign governments. While this prevents the display clause from being directly viewpoint based, a label, with potential First Amendment ramifications of its own, see, e. g., City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 804 (1984); Schacht v. United States, 398 U. S. 58, 63 (1970), it does not render the statute content neutral. Rather, we have held that a regulation that “does not favor either side of a political controversy” is nonetheless impermissible because the “First Amendment’s hostility to content-based regulation extends ... to prohibition of public discussion of an entire topic.” Consolidated Edison Co. v. Public Service Comm’n, 447 U. S. 530, 537 (1980). Here the government has determined that an entire category of speech — signs or displays critical of foreign governments — is not to be permitted. We most recently considered the definition of a content-neutral statute in Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). Drawing on prior decisions, we described “‘content-neutral’ speech restrictions as those that ‘are justified without reference to the content of the regulated speech.’ Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976) (emphasis added).”" }, { "docid": "19946441", "title": "", "text": "244 F.3d at 1188 n. 10; see also Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 166 & n. 96 (1996). The Supreme Court’s decision in Boos v. Barry exemplifies the difficulty of identifying whether a regulation excludes an entire category of speech or restricts a prohibited viewpoint. 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (plurality opinion). In Boos, the Court reviewed a statute that prohibited the display of signs disparaging a foreign government from within 500 feet of that government’s embassy. The plaintiffs argued that the statute discriminated on the basis of viewpoint because speech that favored the foreign government was permitted. From plaintiffs’ standpoint, the subject matter regulated by the statute was ‘speech concerning a foreign government’ and the restriction improperly favored one side of the debate. The Court rejected this argument by defining the subject matter of the regulation at a different level of generality: speech against foreign governments. Because the statute excluded this entire category of speech without regard to any particular foreign government or criticism, a plurality of the Court concluded that the statute was viewpoint-neutral. Id. at 319, 108 S.Ct. 1157. In Lamb’s Chapel, the Court articulated a test for distinguishing between content and viewpoint discrimination. A religious group seeking to show a film series on child rearing from a Christian perspective was denied access to a school facility because of the school district’s policy barring use of the rooms for religious purposes. The Court unanimously held that the school district “discriminate[d] on the basis of viewpoint [by] permit[ting] school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint.” 508 U.S. at 393, 113 S.Ct. 2141. The test is whether the government has excluded perspectives on a subject matter otherwise permitted by the forum. The Court applied that test in Rosenber-ger. In Rosenberger, the Court considered whether a University of Virginia policy of excluding religious publications from eligibility for student funds was viewpoint discrimination or a content-based exclusion. The University sought to" }, { "docid": "4823284", "title": "", "text": "an ordinance banning displays within 500 feet of an embassy that bring a foreign government into disrepute. 485 U.S. at 315, 319, 329, 108 S.Ct. 1157. In defending the ordinance, the government argued that the ban was not content-based because its justification — protecting the dignity of foreign diplomats — was a content-neutral concern over the “secondary effects” of some kinds of speech. Id. at 320-21, 108 S.Ct. 1157. The Court was not persuaded: “The emotive impact of speech on its audience is not a ‘secondary effect.’ ” Id. at 321, 108 S.Ct. 1157. Likewise, Plaintiffs contend that the “adversely affect” clause in the Michigan funeral protest statute is not content-neutral. A person’s expressive activity could easily be said to “adversely affect” a funeral solely due to the content of that person’s message and its effect on others at the funeral. Plaintiffs emphasize that Defendants have already argued that they were justified in arresting the Lowdens because they were “entitle [sic] to consider the possibility of an adverse reaction by others” to the messages on the Lowdens’ signs and could in fact consider the content of the Lowdens’ speech in order to determine whether it would “adversely affect” the funeral. [Dkt. # 20]. In contrast, the Attorney General contends that the Michigan statute does not rely on the message being conveyed in the communication, nor does it rely on the anticipated listener’s response of fear or hostility to any certain message or content. Instead, it prohibits any communication that would disturb the solemnity of the funeral event. The Attorney General emphasizes that Boos recognized that the special nature of the place was relevant in judging the reasonableness of any restraint. 485 U.S. at 320-21, 108 S.Ct. 1157. Thus, preservation of the solemn nature of funeral events and locations is important in understanding why disruptions, regardless of the viewpoint they express, are properly regulated. Plaintiffs highlight that the Attorney General has previously indicated that the statute prohibits conduct that is “offensive” to funeral attendees. Indeed, as previously mentioned, the Attorney General has oscillated between stating that the statute prohibits conduct that" }, { "docid": "3131625", "title": "", "text": "of time. Obsolete commercial signs are permitted to remain posted for up to 80 days after the discontinuance of the business to which the sign pertains. See §§ 25-8 and 25-19. Political signs, however, are only permitted to be erected 30 days prior to the election to which they pertain and must be removed within 7 days of the election. Thus, certain forms of commercial speech are treated more favorably than political speech, and for that reason as well, § 25-45 is a content-based restriction. Other courts, applying Metromedia, have reached similar results. See, e.g., Matthews v. Town of Needham, 764 F.2d 58, 60 (1st Cir.1985) (local bylaw which prohibited political signs but allowed “For Sale” signs, professional office signs, contractors’ advertisements, and signs erected for religious causes impermissible content-based restriction); National Advertising Co. v. Town of Babylon, 900 F.2d 551, 556-57 (2d Cir.) (applying standard of Metromedia plurality in invalidating on First Amendment grounds content-based ordinance favoring commercial speech over noncommercial speech), cert. denied, 498 U.S. 852, 111 S.Ct. 146, 112 L.Ed.2d 112 (1990); Major Media of the Southeast v. City of Raleigh, 792 F.2d 1269, 1272 (4th Cir.1986) (applying Metromedia plurality standard to uphold city signage ordinance because ordinance allowed substitution of noncommercial messages where commercial messages were permitted), cert. denied, 479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987). Gladstone contends that § 25-45 is content-neutral because the durational limitations apply across-the-board to all political candidates, not just candidates from a particular party or espousing a particular viewpoint. However, the argument that a restriction on speech is content-neutral because it is viewpoint-neutral has been repeatedly rejected by the Supreme Court. See Consolidated Edison v. Public Serv. Comm’n, 447 U.S. 530, 537, 100. S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980) (addressing prohibition on utilities from including inserts in monthly electric bills discussing desirability of nuclear power, the Court stated that “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic”). See also Burson, 504 U.S. at 196-97, 112 S.Ct. at 1850" }, { "docid": "19946440", "title": "", "text": "cultural, and community-related activity that has been suppressed due to Faith Center’s religious perspective. Second, Faith Center argues that its religious worship cannot be distinguished from other religious speech that is permitted in the Antioch Library, and to attempt a judicially enforceable distinction would entangle the government with religion in a manner forbidden by the Establishment Clause. A. We first address whether the County has discriminated on the basis of content or viewpoint. “Content discrimination occurs when the government chooses the subjects that may be discussed, while viewpoint discrimination occurs when the government prohibits speech by particular speakers, thereby suppressing a particular view about a subject.” Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir.2001) (internal quotation marks omitted). The distinction between regulation on the basis of subject matter or viewpoint, however, “is not a precise one,” Rosenberger, 515 U.S. at 831, 115 S.Ct. 2510, and as this court has recognized, “the level at which ‘subject matter’ is defined can control whether discrimination is held to be on the basis of content or viewpoint,” Giebel, 244 F.3d at 1188 n. 10; see also Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 166 & n. 96 (1996). The Supreme Court’s decision in Boos v. Barry exemplifies the difficulty of identifying whether a regulation excludes an entire category of speech or restricts a prohibited viewpoint. 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (plurality opinion). In Boos, the Court reviewed a statute that prohibited the display of signs disparaging a foreign government from within 500 feet of that government’s embassy. The plaintiffs argued that the statute discriminated on the basis of viewpoint because speech that favored the foreign government was permitted. From plaintiffs’ standpoint, the subject matter regulated by the statute was ‘speech concerning a foreign government’ and the restriction improperly favored one side of the debate. The Court rejected this argument by defining the subject matter of the regulation at a different level of generality: speech against foreign governments. Because the statute excluded this entire category of speech without regard to any particular foreign government or criticism, a" }, { "docid": "3131624", "title": "", "text": "the Supreme Court held to be content-based in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). The Metrome-dia Court ruled that a San Diego billboard ordinance, which generally prohibited billboards in the city but exempted on-site billboards that identified the owner or occupant of the premises or that advertised goods available on the property, was a content-based regulation because it granted commercial speech a greater degree of protection than noncommercial speech. Id. at 513-17, 101 S.Ct. at 2895-97. Here, the sign code makes equally impermissible distinctions between commercial speech and noncommercial speech. The sign code, for example, permits construction signs to be erected 90 days prior to commencement of construction of a project and does not require removal until 10 days after completion of the project. See Article III, section H. Businesses are allowed to advertise upcoming events as far in advance as they choose. Real estate signs are not governed by a durational restriction and may be displayed under the sign code for any length of time. Obsolete commercial signs are permitted to remain posted for up to 80 days after the discontinuance of the business to which the sign pertains. See §§ 25-8 and 25-19. Political signs, however, are only permitted to be erected 30 days prior to the election to which they pertain and must be removed within 7 days of the election. Thus, certain forms of commercial speech are treated more favorably than political speech, and for that reason as well, § 25-45 is a content-based restriction. Other courts, applying Metromedia, have reached similar results. See, e.g., Matthews v. Town of Needham, 764 F.2d 58, 60 (1st Cir.1985) (local bylaw which prohibited political signs but allowed “For Sale” signs, professional office signs, contractors’ advertisements, and signs erected for religious causes impermissible content-based restriction); National Advertising Co. v. Town of Babylon, 900 F.2d 551, 556-57 (2d Cir.) (applying standard of Metromedia plurality in invalidating on First Amendment grounds content-based ordinance favoring commercial speech over noncommercial speech), cert. denied, 498 U.S. 852, 111 S.Ct. 146, 112 L.Ed.2d 112 (1990);" }, { "docid": "3131626", "title": "", "text": "Major Media of the Southeast v. City of Raleigh, 792 F.2d 1269, 1272 (4th Cir.1986) (applying Metromedia plurality standard to uphold city signage ordinance because ordinance allowed substitution of noncommercial messages where commercial messages were permitted), cert. denied, 479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987). Gladstone contends that § 25-45 is content-neutral because the durational limitations apply across-the-board to all political candidates, not just candidates from a particular party or espousing a particular viewpoint. However, the argument that a restriction on speech is content-neutral because it is viewpoint-neutral has been repeatedly rejected by the Supreme Court. See Consolidated Edison v. Public Serv. Comm’n, 447 U.S. 530, 537, 100. S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980) (addressing prohibition on utilities from including inserts in monthly electric bills discussing desirability of nuclear power, the Court stated that “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic”). See also Burson, 504 U.S. at 196-97, 112 S.Ct. at 1850 (Tennessee statute which prohibited the solicitation of votes and display of campaign material within 100 feet of polling place on election day content-based even though it applied to all political speech). Gladstone also asserts that the Supreme Court announced a new standard for determining whether restrictions on speech are content-based in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), and that under this standard, § 25-15 is a content-neutral restriction. In Ward, the Supreme Court stated that “[t]he principal inquiry in determining content neutrality, in speech cases generally and in time, place, and manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration.” Id. at 791, 109 S.Ct. at 2754 (internal citations omitted). The Court went on to state that “[gjovernment regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech.’ ” Id. (quoting Clark, 468 U.S." }, { "docid": "17575663", "title": "", "text": "the prohibition on religious worship services is impermissible viewpoint discrimination because “prayer, praise and worship” is an educational, cultural, and community-related activity that has been suppressed due to Faith Center’s religious perspective. Second, Faith Center argues that its religious worship cannot be distinguished from other religious speech that is permitted in the Antioch Library, and to attempt a judicially enforceable distinction would entangle the government with religion in a manner forbidden by the Establishment Clause. A. We first address whether the County has discriminated on the basis of content or viewpoint. “Content discrimination occurs when the government chooses the subjects that may be discussed, while viewpoint discrimination occurs when the government prohibits speech by particular speakers, thereby suppressing a particular view about a subject.” Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir.2001) (internal quotation marks omitted). The distinction between regulation on the basis of subject matter or viewpoint, however, “is not a precise one,” Rosenberger, 515 U.S. at 831, 115 S.Ct. 2510, and as this court has recognized, “the level at which ‘subject matter’ is defined can control whether discrimination is held to be on the basis of content or viewpoint,” Giebel, 244 F.3d at 1188 n. 10; see also Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 166 & n. 96 (1996). The Supreme Court’s decision in Boos v. Barry exemplifies the difficulty of identifying whether a regulation excludes an entire category of speech or restricts a prohibited viewpoint. 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (plurality opinion). In Boos, the Court reviewed a statute that prohibited the display of signs disparaging a foreign government from within 500 feet of that government’s embassy. The plaintiffs argued that the statute discriminated on the basis of viewpoint because speech that favored the foreign government was permitted. From plaintiffs’ standpoint, the subject matter regulated by the statute was ‘speech concerning a foreign government’ and the restriction improperly favored one side of the debate. The Court rejected this argument by defining the subject matter of the regulation at a different level of generality: speech against foreign governments. Because" }, { "docid": "8959518", "title": "", "text": "requirement for signs are unconstitutional. Defendants argue that five of the Justices in Metromedia believed that the limited exceptions to the general prohibition of off-premises advertising in the ordinance at issue there were too insubstantial to constitute discrimination on the basis of content. This argument is not without appeal, and courts within other circuits have accepted it in relying on an inquiry of whether the ordinance regulates on the basis of the viewpoint expressed, instead of considering whether the ordinance discriminates on the basis of content, to determine constitutionality. See Scadron v. City of Des Plaines, 734 F.Supp. 1437, 1442 (N.D.I11.1990); see also Rappa v. New Castle County, 18 F.3d 1043, 1065 (3d Cir.1994) (concluding that when there is a significant relationship between the content of a particular speech and a specific location or its use, the state can exempt it from a general ban). However, as mentioned above, the Second Circuit has interpreted Metromedia as requiring strict content neutrality for all regulation of noncommercial speech. See Town of Niagara, 942 F.2d at 147; National Advertising v. Town of Babylon, 900 F.2d 551, 556-57 (2d Cir.1990). Therefore, this Court is constrained in its interpretation of Me-tromedia and must hold that Mamakat-ing’s amended § 199-15 is unconstitutional because it contains content-based exemptions from its permit requirements. IV. Plaintiff’s Challenge to Chapter 44 Plaintiff also seeks a declaration that Chapter 44 of Mamakating’s Town Code, which governs political advertising, is unconstitutional. Section 44-4 of the Town Code allows the placement of political signs that are smaller than two feet by four feet only in house windows on private property. Political signs larger than two feet by four feet may not be displayed without first applying for and obtaining a registration permit from the town building inspector. See Mamakating Town Code § 44-4. An application for a permit to display a larger political sign requires that the applicant sign a statement that the sign “will be erected no earlier than 15 days prior to any election and must be removed no later than 15 days after said election.” Id. at § 44-5(A)(5). The" }, { "docid": "17575664", "title": "", "text": "is defined can control whether discrimination is held to be on the basis of content or viewpoint,” Giebel, 244 F.3d at 1188 n. 10; see also Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 166 & n. 96 (1996). The Supreme Court’s decision in Boos v. Barry exemplifies the difficulty of identifying whether a regulation excludes an entire category of speech or restricts a prohibited viewpoint. 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (plurality opinion). In Boos, the Court reviewed a statute that prohibited the display of signs disparaging a foreign government from within 500 feet of that government’s embassy. The plaintiffs argued that the statute discriminated on the basis of viewpoint because speech that favored the foreign government was permitted. From plaintiffs’ standpoint, the subject matter regulated by the statute was ‘speech concerning a foreign government’ and the restriction improperly favored one side of the debate. The Court rejected this argument by defining the subject matter of the regulation at a different level of generality: speech against foreign governments. Because the statute excluded this entire category of speech without regard to any particular foreign government or criticism, a plurality of the Court concluded that the statute was viewpoint-neutral. Id. at 319, 108 S.Ct. 1157. In Lamb’s Chapel, the Court articulated a test for distinguishing between content and viewpoint discrimination. A religious group seeking to show a film series on child rearing from a Christian perspective was denied access to a school facility because of the school district’s policy barring use of the rooms for religious purposes. The Court unanimously held that the school district “discriminate[d] on the basis of viewpoint [by] permit[ting] school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint.” 508 U.S. at 393, 113 S.Ct. 2141. The test is whether the government has excluded perspectives on a subject matter otherwise permitted by the forum. The Court applied that test in Rosenber-ger. In Rosenberger, the Court considered whether a University of Virginia policy of excluding" }, { "docid": "3783806", "title": "", "text": "function of the property, the majority invites government to disguise its preference for or against the content or the viewpoint of a particular message by simply asserting its preference for the function of the sign. Such a result, in my opinion, is patently unconstitutional. See Boos v. Barry, 485 U.S. 312, 319, 108 S.Ct. 1157, 1162-63, 99 L.Ed.2d 333 (1988); cf. Linmark Assocs., Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (invalidating as impermissible content-based regulation ordinance prohibiting posting of “For Sale” and “Sold” signs). I would hold that limiting noncommercial signs to advocacy of onsite activities, is itself, an unconstitutional content-based regulation. See Metromedia, 453 U.S. at 513, 101 S.Ct. at 2895 (government may not “prohibit[] an occupant from displaying its own ideas or those of others”); see also City of Orange, 861 F.2d at 249 n. 3 (declining to address this precise issue, but noting that plurality opinion in Metromedia lends support to proposition that' offsite/onsite distinction between noncommercial messages would be invalid); Burkhart Advertising Inc. v. Auburn, 786 F.Supp. 721, 732 (N.D.Ind.1991) (finding ordinance prohibiting off-premisé billboards impermissibly content-based “because the determination of whether the billboard is considered ‘on-premise’ or ‘off-premise’ depends upon what it says, i.e., does it promote a business or activity at the location of the billboard?”). ' B. The exemptions of the Delaware statute are impermissibly content-based. They cannot be justified without reference to the content of the signs. The majority acknowledges this, as it must. Because there áre no secondary effects attributed to the excepted signs that distinguish them from the impermissible signs allowed under Chapter 11 of the Delaware Code, the majority must concede that “[a]ny justification for treating these signs differently must rely on the content of these signs.” Ante at 50. Having so found, the majority is bound by Supreme Court precedent to strike down Chapter 11, excepting only for directional and warning signs. See, e.g., Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983) (any restrictions of noncommercial speech based" }, { "docid": "8959504", "title": "", "text": "first step in the analysis of any regulation of speech is to determine whether it is content-based or content-neutral. Content discrimination is presumptively invalid. See id. at 59, 114 S.Ct. 2038 (O’Connor, J., concurring). In Me-tromedia Inc. v. City of San Diego, the Supreme Court found that a San Diego ordinance prohibiting all outdoor signs except on-site commercial signs, government signs, historical plaques, religious symbols, for sale signs, and other specific categories of commercial signs, was content-based and therefore unconstitutional. 453 U.S. 490, 512, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). The Court found that San Diego had chosen to value certain types of com mercial speech, onsite advertising, over noncommercial speech and other commercial speech, including off-site advertising. See id. Noncommercial speech has “consistently been accorded a greater degree of protection than commercial speech.” Id. at 513, 101 S.Ct. 2882. Therefore, the Court concluded that “[ijnsofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages.” Id. Like the ordinance in Metromedia, Ma-makating’s original sign ordinance favors certain commercial signs over non-commercial signs. The ordinance allows on-site advertising, address signs, identification signs for hotels and non-dwelling buildings, and sale or rental signs, to be posted permanently without a permit, while requiring a permit for signs in the public interest, or noncommercial signs, and allowing those signs to be posted only temporarily. By favoring certain classes of signs on the basis of their content, the Town enacted content-based regulations of speech. Strict scrutiny applies to content-based regulations. See Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). The municipality is required to show that the “regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Id. However, “[w]ith rare exceptions, content discrimination in regulations of the speech of private citizens on private property or in a traditional public forum" }, { "docid": "22393222", "title": "", "text": "public issue picketing. See, e. g., United States v. Grace, 461 U. S. 171 (1983); Carey v. Brown, supra; Police Department of Chicago v. Mosley, 408 U. S. 92 (1972). Second, the display clause bars such speech on public streets and sidewalks, traditional public fora that “time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U. S. 496, 515 (1939) (Roberts, J.). In such places, which occupy a “special position in terms of First Amendment protection,” United States v. Grace, 461 U. S., at 180, the government’s ability to restrict expressive activity “is very limited.” Id., at 177. Third, §22-1115 is content básed. Whether individuals may picket in front of a foreign embassy depends entirely upon whether their picket signs are critical of the foreign government or not. One category of speech has been completely prohibited within 500 feet of embassies. Other categories of speech, however, such as favorable speech about a foreign government or speech concerning a labor dispute with a foreign government, are permitted. See D. C. Code § 22-1116 (1981). Both the majority and dissent in the Court of Appeals accepted this common sense reading of the statute and concluded that the display clause was content based. The majority indicated, however, that it could be argued that the regulation was not content based. 255 U. S. App. D. C., at 38, n. 15, 798 F. 2d, at 1469, n. 15. Both respondents and the United States have now made such an argument in this Court. They contend that the statute is not content based because the government is not itself selecting between viewpoints; the permissible message on a picket sign is determined solely by the policies of a foreign government. We reject this contention, although we agree the provision is not viewpoint based. The display clause determines which viewpoint is acceptable in a neutral fashion by looking to the policies of foreign governments. While this prevents the display clause from being directly viewpoint based, a label, with potential First Amendment ramifications of its" }, { "docid": "7877713", "title": "", "text": "hand, the regulation is justified without reference to the content of the speech or serves purposes unrelated to the content, it is a content-neutral regulation, even if it has an incidental effect on some speakers or messages but not others. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989); Boos v. Barry, 485 U.S. 312, 320, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (1988). Finally, this court has noted that government regulations that apply evenhandedly to all speakers weigh in favor of finding content-neutrality. See International Soc’y for Krishna Consciousness of Neu) Orleans, Inc. v. Baton Rouge, 876 F.2d 494, 497 (5th Cir.1989). We conclude that Access’s fee rule is content-neutral because the rule does not, by its terms, distinguish between favored speech and disfavored speech. Access does not examine the content or message of submitted programs in determining whether to impose a fee. Compare Frisby v. Schultz, 487 U.S. at 474, 481-82, 108 S.Ct. 2495, at 2501, 101 L.Ed.2d 420 (1988) (finding that a municipal ordinance prohibiting all picketing near a residence was content-neutral because government did not have to look at the content to determine where picketers can demonstrate), with Boos, 485 U.S. 312, 318-19, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988) (finding that an ordinance prohibiting demonstrations in front of foreign embassies that are critical of the foreign government was content based because government necessarily had to review content to determine the legality of the demonstration). Access’s fee regulation is an evenhanded charge on all providers submitting non-loeally-produced programming, regardless of the content or viewpoint contained in the program. In addition, the fee rule can be justified without referring to the content of any of the submitted programs. See Ward, 491 U.S. at 791, 109 S.Ct. at 2754. As discussed infra, Access asserts that the fee rule promotes local ideas and debate and helps fund equipment and training for local producers and the cost of Access’s operations. See id.; Boos, 485 U.S. at 320, 108 S.Ct. at 1163. Finally, we rely on a Seventh Circuit case that" }, { "docid": "3783817", "title": "", "text": "long as the regulation is narrowly tailored so that it does not unnecessarily infringe on speech. Police Dep't of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972). The exception for directional and warning signs satisfies this requirement; these signs are justified by public necessity. Because this exception, unlike the others, is directly related to Delaware's asserted interest in public safety, and can be justified without reference to the content of the regulated speech, \"there is an appropriate governmental interest suitably furthered by the differential treatment.” Id. 408 U.S. at 95, 92 S.Ct. at 2290. . I note that the Eleventh Circuit reached a different result in Messer v. City of Douglasville, Ga., 975 F.2d 1505 (11th Cir.1992), cert. denied, U.S. -, 113 S.Ct 2395, 124 L.Ed.2d 296 (1993). The Messer court employed a dubious analysis, however, in holding that the Douglas-ville ordinance allowing onsite noncommercial messages while prohibiting offsite noncommercial signs satisfied First Amendment requirements. Finding that the Douglasville ordinance’s preference for onsite noncommercial speech over offsite noncommercial speech was not viewpoint-discriminatory, the court concluded that the ordinance could be justified as a reasonable time, place, and manner restriction. 975 F.2d at 1509-10. Analysis of the constitutionality of such restrictions on protected speech, of course, depends not only on whether or not the restrictions are viewpoint-discriminatory, but also on whether they are “content-neutral” or \"content-based.” See, e.g., Burson v. Freeman, — U.S. -, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992); Boos v. Barry, 485 U.S. 312, 319, 108 S.Ct. 1157, 1162-63, 99 L.Ed.2d 333 (1988). Furthermore, Messer is distinguishable from both this case and Metromedia because, unlike either the San Diego ordinance in Metromedia or Chapter 11 of the Delaware Code, the exemptions of the Douglasville sign ordinance were not exemptions from a general ban of all off-premise signage; rather, they were exemptions from permit requirements and fees. 975 F.2d at 1513. . See, supra, note 1, regarding modifying the district court's order to except directional and warning signs. . In Discovery Network, the Court held that there was no close fit between" }, { "docid": "3783805", "title": "", "text": "to determine, in the first instance, whether speech is commercial or noncommercial, “entail[s] a substantial exercise of discretion by a city’s official” and therefore “presents a real danger of curtailing noncommercial speech in the guise of regulating commercial speech”); cf. Discovery Network, — U.S. at - n. 19, 113 S.Ct. at 1513 n. 19 (“the responsibility for distinguishing between [protected speech] carries with it the potential for invidious discrimination of disfavored subjects”); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230, 107 S.Ct. 1722, 1728, 95 L.Ed.2d 209 (1987) (“official scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment’s guarantee of freedom of the press”). Under the majority’s formulation, government may not only ascribe a higher value to a commercial sign (e.g., “Reckless Eddie’s Packaged Goods”) than to a noncommercial sign (e.g., “Don’t Drink and Drive”), it may also ascribe a higher value to one viewpoint (e.g., “Defeat Smith”) than to another (e.g., “Elect Smith”). In fashioning a standard requiring consideration of the function of the property, the majority invites government to disguise its preference for or against the content or the viewpoint of a particular message by simply asserting its preference for the function of the sign. Such a result, in my opinion, is patently unconstitutional. See Boos v. Barry, 485 U.S. 312, 319, 108 S.Ct. 1157, 1162-63, 99 L.Ed.2d 333 (1988); cf. Linmark Assocs., Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (invalidating as impermissible content-based regulation ordinance prohibiting posting of “For Sale” and “Sold” signs). I would hold that limiting noncommercial signs to advocacy of onsite activities, is itself, an unconstitutional content-based regulation. See Metromedia, 453 U.S. at 513, 101 S.Ct. at 2895 (government may not “prohibit[] an occupant from displaying its own ideas or those of others”); see also City of Orange, 861 F.2d at 249 n. 3 (declining to address this precise issue, but noting that plurality opinion in Metromedia lends support to proposition that' offsite/onsite distinction between noncommercial messages would be invalid); Burkhart Advertising Inc." }, { "docid": "3783798", "title": "", "text": "the Delaware Code impermissibly favors commercial speech over noncommercial speech. Chapter 11, like the invalid San Diego ordinance, prohibits the display of noncommercial messages in places where commercial messages are permitted. Taking instruction from, and paraphrasing, Metromedia: “Insofar as [Delaware] tolerates [signs] at all, it cannot choose to limit their content to commercial messages; [Delaware] may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages.” 453 U.S. at 513, 101 S.Ct. at 2895 (plurality opinion); see also id. at 536, 101 S.Ct. at 2907 (Brennan, J., concurring in judgment) (agreeing with plurality that Court’s cases have accorded more protection to noncommercial than to commercial speech). But see Wheeler, 822 F.2d at 591 (upholding such a distinction as a content-neutral time, place and manner regulation). The district court also correctly concluded that the Delaware statute impermissibly discriminates between different types of noncommercial speech. Chapter 11, as did the San Diego ordinance held to be invalid in Metromedia, exempts certain noncommercial speech (here, e.g., a sign describing a historical site; in Metromedia, temporary political signs) on the basis of content alone. As the district court found, “The State may not in this way choose the appropriate subjects for public discourse.” Rappa, 813 F.Supp. at 1080. See Metromedia, 453 U.S. at 514-15, 101 S.Ct. at 2896 (plurality opinion); see also Consolidated Edison of New York Co. v. Public Serv. Comm’n, 447 U.S. 530, 538, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980) (“To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth”). III. Without reconciling its conclusion with controlling authority, the majority has embarked on its own unconstrained interpretation of First Amendment neutrality requirements. In fashioning “A New Test” from the whole cloth, the majority, in my opinion, has discarded traditional doctrinal analysis and has deviated impermissibly from established principles of stare decisis. A. The majority holds that, “statutes aimed at a legitimate end unrelated to the suppression of speech" }, { "docid": "2374307", "title": "", "text": "concerns: (i) regulation of political speech; (ii) regulation of speech in a public forum; and (iii) regulation of speech based on content. The Burson plurality found that a content-based restriction on political speech in a public forum is subject to strict scrutiny. Strict scrutiny requires Louisiana to show that Section 1462 is narrowly tailored to achieve a compelling governmental interest. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). Undeniably, both the Tennessee statute and Section 1462 are content-based restrictions. Each singles out and sanctions public discourse on politics—an area deep within the confines of the First Amendment. See, e.g., Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271 (1989) (citations omitted) (“the First Amendment has its fullest and most urgent application to [political] speech”). Clearly, Section 1462 does not apply to any other type of speech. Consequently, the statute is not a content-neutral time, place, or manner restriction and, thus, is subject to strict scrutiny. Moreover, the statute must still be constitutionally gauged under the strict scrutiny standard even though it is viewpoint-neutral. See, e.g., Boos v. Barry, 485 U.S. 312, 319, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988) (viewpoint-neutral statute that prohibited use of signs within 500 feet of foreign embassies content-based); see also Consolidated Edison Co. v. Public Serv. Comm’n, 447 U.S. 530, 537, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980) (“[t]he First Amendment’s hostility to content-based restrictions extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion on an entire topic”). In Burson, the state of Tennessee proffered two grounds upon which to support its compelling interest in a campaign-free zone: (i) the protection of its citizens’ right to vote freely for the candidate of their choice; and (ii) the protection of the right to vote in an election that is conducted with integrity and reliability. The Supreme Court agreed that these interests were compelling, but the court noted that “[t]o survive strict scrutiny ... a state" } ]

[ { "docid": "23579609", "title": "", "text": "use, collateral estoppel should be applied[.]”). In order to compare the essential state-court findings with the requirements for willful and malicious injury, we need a better understanding of the latter term. Unfortunately, the case law is “all over the lot” when it comes to defining it. See Jendusa-Nicolai v. Larsen, 677 F.3d 320, 322 (7th Cir.2012) (recounting similar but different tests from the Second, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits). Bankruptcy courts in this circuit have focused on three points: (1) an injury caused by the debtor (2) willfully and (3) maliciously. In re Carlson, 224 B.R. 659, 662 (Bankr.N.D.Ill.1998), aff'd 2000 WL 226706 (N.D.Ill.2000), aff'd — Fed.Appx. -, 2001 WL 1313652 (7th Cir.2001). As with all exceptions to discharge, the burden is oh the creditor to establish these facts by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Looking more closely at these three elements — injury, willfulness, and malice — a few points are worth making. The term “injury,” while not defined in the Code, is understood to mean a “violation of another’s legal right, for which the law provides a remedy.” In re Lymberopoulos, 453 B.R. 340, 343 (Bankr.N.D.Ill.2011) (citation omitted). The injury need not have been suffered directly by the creditor asserting the claim. Larsen v. Jendusa-Nicolai, 442 B.R. 905, 917 (E.D.Wis.2010), aff'd 677 F.3d 320 (7th Cir.2012). The creditor’s claim must, however, derive from the other’s injury. Willfulness requires “a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (emphasis in original). Although Geiger refers to intentional torts to help explain the federal standard, it does not hold that all state-law intentional torts are “willful” for purposes of section 523(a)(6). See Jendusa-Nicolai, 677 F.3d at 322 (“[A]n intentional tort needn’t involve an intent to cause injury.”). “Willfulness” can be found either if the “debtor’s motive was to inflict the injury, or the debtor’s act was substantially certain to result in injury.” See" } ]

[ { "docid": "21181278", "title": "", "text": "injury to another entity or the property of another entity.” 11 U.S.C. § 523(a)(6). Conversion, in Kentucky the wrongful exercise of dominion and control over the property of another, may be considered a willful and malicious injury. Call Federal Credit Union v. Sweeney (In re Sweeney), 264 B.R. 866 (Bankr.W.D.Ky.2001). The standard for determining such an injury has been articulated by the United States Supreme Court in Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Only a debt resulting from a “deliberate and intentional injury” will be excepted from discharge under section 523(a)(6). Id. at 61, 118 S.Ct. at 977. Further, “[o]nly acts done with the intent to cause injury-and not merely acts done intentionally-can cause willful and malicious injury.” In re Markowitz, 190 F.3d 455, 464 (6th Cir.1999). The Markowitz court went on to say that “unless the actor desires to cause the consequences of his act, or ... believes that the consequences are substantial certain to result from it, he has not committed a willful and malicious injury as defined under § 523(a)(6).” Id. at 464 (internal citation and quotation omitted). As to how the “willful” and “malicious” prongs of section 523(a)(6) are to be treated: The Sixth Circuit has adopted an integrated test.... In this Circuit, under Markowitz, the creditor must demonstrate that the Debtor either (1) intend ed to cause injury to the Creditor or to the Creditor’s property, or (2) engaged in an intentional act from which the Debtor believed injury would be substantially certain to result.... [M]any courts have determined, post Geiger, that the conversion of a secured Creditor’s collateral is willful and malicious when the facts establish that the Debtor had the requisite intent (whether objective or subjective) to injure the Creditor. Following Geiger and Markowitz, courts in the Circuit have likewise found debts non-dischargeable where the Debtor has converted a secured creditor’s collateral with either an intent to cause injury or where the Debtor believed there was a substantial certainty of injury.... Since a Debtor in a § 523(a)(6) case is unlikely to admit that he or" }, { "docid": "23579608", "title": "", "text": "N.W.2d 96, 100 (Wis.Ct.App.2006); Methodist Manor of Waukesha, Inc. v. Martin, 255 Wis.2d 707, 647 N.W.2d 409, 412 (Wis.Ct.App.2002) (“[M]oney may also be converted.”). The question for us is what effect these findings have on the bankruptcy issue of non-dischargeability for willful and malicious injury under 11 U.S.C. § 523(a)(6). See Bukowski v. Patel, 266 B.R. 838 (E.D.Wis.2001) (applying Wisconsin issue preclusion in inquiry regarding willful and malicious injury). The bankruptcy and district courts concluded that the state judgment had no effect on the bankruptcy inquiry because the state court did not find — and was not required to find — willful and malicious injury as that term is used in the Bankruptcy Code. If that were all we had, we would find that analysis to be insufficient, because issue preclusion could apply to the elements of the willful and malicious inquiry even if the state court was addressing a different ultimate question. See Klingman, 831 F.2d at 1295 (‘Where a state court determines factual questions using the same standards as the bankruptcy court would use, collateral estoppel should be applied[.]”). In order to compare the essential state-court findings with the requirements for willful and malicious injury, we need a better understanding of the latter term. Unfortunately, the case law is “all over the lot” when it comes to defining it. See Jendusa-Nicolai v. Larsen, 677 F.3d 320, 322 (7th Cir.2012) (recounting similar but different tests from the Second, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits). Bankruptcy courts in this circuit have focused on three points: (1) an injury caused by the debtor (2) willfully and (3) maliciously. In re Carlson, 224 B.R. 659, 662 (Bankr.N.D.Ill.1998), aff'd 2000 WL 226706 (N.D.Ill.2000), aff'd — Fed.Appx. -, 2001 WL 1313652 (7th Cir.2001). As with all exceptions to discharge, the burden is oh the creditor to establish these facts by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Looking more closely at these three elements — injury, willfulness, and malice — a few points are worth making. The term “injury,” while" }, { "docid": "14614792", "title": "", "text": "Car would not return of its own accord. Longley’s conduct caused Mitsubishi to lose its collateral. Mitsubishi’s rights as a secured party with a security interest in the Car as collateral were converted. Mitsubishi argues that the Bankruptcy Court correctly determined that Longley willfully and maliciously injured its rights by conversion. Longley argues that the Bankruptcy Court erred because the facts presented to it established only Longley’s intentional transfer of the vehicle but no intent to injure Mitsubishi or its lien interest. Section 523(a)(6) of the Bankruptcy Code provides that a debt “for willful and malicious injury by a debtor to another entity or the property of another entity” is not subject to discharge. 11 U.S.C. § 523(a)(6). The burden of proof is upon the creditor to establish that the debt is non-dischargeable by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The legal question presented is the meaning of “willful and malicious injury” in the context of a debtor’s conversion of secured property. This requires analysis of three pivotal Tenth Circuit cases interpreting § 523(a)(6), and of the United States Supreme Court’s recent decision of Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). In the Tenth Circuit, the phrase “willful and malicious injury” has been interpreted as requiring proof of two distinct elements — that the injury was both “willful” and “malicious.” Failure of a creditor to establish either willfulness or malice renders the debt dischargeable. Farmers Ins. Group v. Compos (In re Compos), 768 F.2d 1155 (10th Cir.1985). In Compos, the Tenth Circuit addressed the situation of a debtor who, while driving under the influence of alcohol, ran into the plaintiffs car. The Court reasoned that “willful” modified “injury.” Thus, it ruled that § 523(a)(6) excepts from discharge only obligations arising from acts intended to cause injury. Compos, 768 F.2d at 1158. Although the debtor knew of his inebriated condition and intentionally drove the car, because the debtor did not intend to injure the victim, the willfulness requirement of § 523(a)(6) was" }, { "docid": "1815385", "title": "", "text": "II of its Complaint is entirely denied, and Debtor’s motion is allowed. Count III: Dischargeability Claim under § 523(a)(6) for Debtor’s Willful and Malicious Conduct Section 523(a)(6) of the Bankruptcy Code provides: (а) A discharge under section 727 does not discharge an individual debtor from any debt— (б) for willful and malicious injury by the debtor to another entity or the property of another entity. 11 U.S.C. § 523(a)(6). A creditor seeking a determination of non-dischargeability under § 523(a)(6) must show three elements by a preponderance of the evidence: (1) that the Debtor intended to and caused an injury; (2) that the Debtor’s actions were willful; and (3) that the Debtor’s actions were malicious. Under § 523(a)(6) “willful” means a palpable intent to cause injury, not merely the commission of an intentional act that happens to result in an injury. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Section 523(a)(6) does not encompass “situations in which an act is intentional, but injury is unintended, i.e., neither desired nor in fact anticipated by the debtor.” Id. According to the benchmark set forth in Geiger, Bombardier must show that Debtor intended that her actions bring about injury to Bombardier. Id. at 61-62, 118 S.Ct. 974. Thus, injuries inflicted by the Debtor’s negligent or reckless actions do not fall within the boundaries of 523(a)(6). Id. at 63-64, 118 S.Ct. 974. Furthermore, in the context of debts arising from conversion, a conversion of another’s interest, each as arguably occurred when Debtor turned the Motorcycle over to her boyfriend is not sufficient to meet the willful and malicious standard of subsection (a)(6). Davis v. Aetna Acceptance Co., 293 U.S. 328, 332, 55 S.Ct. 151, 79 L.Ed. 393 (1934) (recognized as viable rule for conversion by Geiger); see e.g., In re Scotella, 18 B.R. 975, 976-77 (Bankr.N.D.Ill.1982) (explaining that the debtor must have a conscious intent to violate the property rights of another.). The malice required by 523(a)(6) requires an intent to cause harm; recklessness or negligence will not suffice. Geiger, 523 U.S. at 64, 118 S.Ct. 974. Bombardier must" }, { "docid": "1815384", "title": "", "text": "had title but subject to a creditor’s security interest: It is true that this [type of] interest may be injured an if it was done with the requisite willfulness and malice may be the basis of a claim of non-dischargeability under § 523(a)(6). However, it could not be the basis of a claim based on embezzlement pursuant to § 523(a)(4) because the funds allegedly embezzled were not the funds of the [secured creditor]. It is hardly logical to assume that Congress intended that the two exceptions to discharge, one based on embezzlement, § 523(a)(4); the other on willful, malicious injury to property of an entity, 523(a)(6), were intended to be used interchangeably and both have the same operating elements and proof of the other. Nobel, 179 B.R. at 315-316; see also, In re Lloyd Phillips, 882 F.2d 302 (8th Cir.1989). Because Debtor has title to the Motorcycle a claim for embezzlement of the Motorcycle cannot he. Accordingly, Bombardier has failed to show that the Debtor’s conduct comes within Section 523(a)(4). Therefore, Bombardier’s motion on Count II of its Complaint is entirely denied, and Debtor’s motion is allowed. Count III: Dischargeability Claim under § 523(a)(6) for Debtor’s Willful and Malicious Conduct Section 523(a)(6) of the Bankruptcy Code provides: (а) A discharge under section 727 does not discharge an individual debtor from any debt— (б) for willful and malicious injury by the debtor to another entity or the property of another entity. 11 U.S.C. § 523(a)(6). A creditor seeking a determination of non-dischargeability under § 523(a)(6) must show three elements by a preponderance of the evidence: (1) that the Debtor intended to and caused an injury; (2) that the Debtor’s actions were willful; and (3) that the Debtor’s actions were malicious. Under § 523(a)(6) “willful” means a palpable intent to cause injury, not merely the commission of an intentional act that happens to result in an injury. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Section 523(a)(6) does not encompass “situations in which an act is intentional, but injury is unintended, i.e., neither desired nor in" }, { "docid": "21667987", "title": "", "text": "397, 400 (6th Cir. 1998), Discharge exceptions are narrowly construed in favor of the debtor, and the creditor must prove by a preponderance of the evidence that a discharge exception applies. Meyers v. I.R.S. (In re Meyers), 196 F.3d 622, 624 (6th Cir. 1999). III. ANALYSIS The Bankruptcy Court held that “the only issue at trial was whether the debtor acted with malice.” (Doc. No. 1-2 at 3.) MarketGraphics argues that the Bankruptcy Court used the incorrect standard in determining whether David Berge acted with malice. (Doc. No. 15 at 46.) It further argues that the David Berge’s trial testimony conclusively shows that he acted with malice, and the Court therefore should enter judgment for MarketGraphics. (Id. at 53-75.) David Berge argues that the Bankruptcy Court’s judgment is correct. (Doc. No. 17.) A. The Standard A Chapter 7 bankruptcy does not discharge a debtor from any debt “for willful and malicious injury to another entity or to the property of another entity 11 U.S.C. § 523(a)(6). For § 523(a)(6) to apply, a debtor must (1) “will or desire harm[;]” or (2) “believe injury is substantially certain to occur as a result of his behavior.” Sanderson Farms, Inc. v. Gasbarro, 299 Fed.Appx. 499, 504 (6th Cir. 2008) (quoting Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 465 n.10 (6th Cir. 1999)). This' limits the exception to debts “based on what the law has for generations called an intentional tort.” Kawaauhau v. Geiger, 523 U.S. 57, 60, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (quoting In re Geiger, 113 F.3d 848, 852 (8th Cir. 1997) (en banc)). The “willful and malicious” standard in § 523(a)(6) has evolved. In the 1980s, the Sixth Circuit determined that “willful” means “an intentional act that results in injury,” Perkins v. Scharffe, 817 F.2d 392, 393 (6th Cir. 1987), and “malicious” means “in conscious disregard of one’s duties or without just cause or excuse; it does not require ill-will or specific intent to do harm.” Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir. 1986). In 1993, the United States Supreme Court overturned Perkins, holding that" }, { "docid": "5882327", "title": "", "text": "for trial. — II — Plaintiffs seek a determination that the debt for counsel fees and expenses owed to them by debtors is excepted from dis charge by § 523(a)(6) of the Bankruptcy Code, which provides in part as follows: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt — .... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. § 523(a)(6). A creditor objecting to the discharge of a debt owed to it by a debtor has the burden of proving, by a preponderance of the evidence, that the debt falls within the scope of one of the numerous exceptions to discharge found at § 523(a) of the Bankruptcy Code. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991). It is not sufficient for purposes of § 523(a)(6) that the debtor acted intentionally and that a resulting injury was negligently or recklessly inflicted upon another entity or its property. Kawaauhau v. Geiger, 523 U.S. 57, 64, 118 S.Ct. 974, 978, 140 L.Ed.2d 90 (1998). The phrase “willful and malicious” modifies the word “injury”. This implies that § 523(a)(6) requires a deliberate or intentional injury, not a deliberate or intentional act that merely happens to result in injury. Id., 523 U.S. at 61, 118 S.Ct. at 977. Aside from concluding that a debtor must intend to injure another entity or its property, the Supreme Court did not specify in Kawaauhau the precise state of mind necessary for purposes of the willful- and-malieious-injury requirement of § 523(a)(6). Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1207 (9th Cir.), cert. denied, 533 U.S. 930, 121 S.Ct. 2552, 150 L.Ed.2d 718 (2001). Post -Kawaauhau appellate court decisions appear to take either of two approaches to this issue, one “subjective” and the other “objective”. Under the subjective approach, an injury is willful and malicious for purposes of § 523(a)(6) only if the debtor subjectively intended to cause injury or subjectively believed that injury was a" }, { "docid": "9855930", "title": "", "text": "title does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. § 523(a)(6). In order to be entitled to a determination of non-discharge-ability under § 523(a)(6), the Creditor must prove three elements by a preponderance of the evidence: (1) that the Debt- or intended to and caused an injury; (2) that the Debtor’s actions were willful; and (3) that the Debtor’s actions were malicious. French, Kezelis & Kominiarek, P.C. v. Carlson (In re Carlson), 224 B.R. 659, 662 (Bankr.N.D.Ill.1998) (citation omitted), aff'd, No. 99 C 6020, 2000 WL 226706 (N.D.Ill. Feb. 22, 2000), aff'd — F.3d-, 2001 WL 1313652 (7th Cir. Oct. 23, 2001). “Willful” for purposes of § 523(a)(6) means intent to cause injury, not merely the commission of an intentional act that leads to injury. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Under Geiger and its more stringent standards, to satisfy the requirements of § 523(a)(6), the Creditor must plead and prove that the Debtor actually intended to harm her and not merely that the Debtor acted intentionally and she was thus harmed. Id. at 61-62, 118 S.Ct. 974. The Debtor must have intended the consequences of her act. Id. Injuries either negligently or recklessly inflicted do not come within the scope of § 523(a)(6). Id. at 64, 118 S.Ct. 974. With reference to claims of conversion, not every tort judgment for conversion is exempt from discharge. “There may be a conversion which is innocent or technical, an unauthorized assumption of dominion without willfulness or malice.” Davis v. Aetna Acceptance Co., 293 U.S. 328, 332, 55 S.Ct. 151, 79 L.Ed. 393 (1934) (cited with approval by Geiger). Thus, to find conversion of a creditor’s property non-dis-ehargeable, there must be an intentional injury. The Supreme Court did not define the scope of the term “intent” utilized to describe willful conduct. Recent decisions, however, have found that either a showing of subjective intent to injure the creditor or a showing of a debtor’s" }, { "docid": "5678508", "title": "", "text": "court continued that “it does not in any way lessen or eliminate the finding that the degree of malice here was absolute hatred ...” Id. Therefore, the state court determined that Larsen’s conduct caused a malicious injury. 2. Derivative Claims Larsen also disputes that the state court’s determination established he caused willful and malicious injury to Ms. Jendusa-Nicolai’s husband and two daughters—David M. Nicolai (“Mr. Nicolai”) and A.M.L. and H.A.L. However, this argument misses the point. The state court entered judgment and awarded damages to these three appellees for derivative claims of loss of society and companionship and loss of consortium. Id. at 922. What Larsen’s argument fails to account for is that these appellees’ claims are derivative claims, meaning they are derived from another claim. Indeed, a derivative action is defined as “a lawsuit arising from an injury to another person.” Black’s Law Dictionary (9th ed. 2009). Therefore, in this case, Ms. Jendusa-Nicolai’s injury, which the state court found was willful and malicious, gave rise to the claims of her husband and her children. Moreover, by its plain language, § 523(a)(6) excepts from discharge a debt for willful and malicious injury by the debtor to another entity or to the property of another entity. The term “entity” includes a “person.” 11 U.S.C. § 101(15). The term “person” includes an “individual.” 11 U.S.C. § 101(41). In terms of the derivative claims, the individual the debtor injured was Ms. Jendusa-Nicolai. There is nothing in section 523(a) requiring that the injured individual be the person whose debt is excepted from discharge under § 523(a)(6). Section 523(a)(6) requires only that there be a debt owing by the debtor and that such debt be “for willful and malicious injury by the debtor to another entity.” Here, the debtor is obligated to his former wife’s husband and his own daughters under the state court judgments in their favor. The debt arises from the willful and malicious injury by the debtor to Ms. Jendusa-Nicolai. CONCLUSION In sum, the bankruptcy court correctly concluded the state court judgment determined that Larsen’s conduct caused a willful and malicious injury" }, { "docid": "694828", "title": "", "text": "for Creditor’s claim rested on § 523(a)(6). In pertinent part, this section states that a debt arising from “willful and malicious injury by the debtor to the property of another entity” is excepted from discharge. 11 U.S.C. § 523(a)(6). Similar to other exceptions to discharge, “it is the movant’s burden to establish, by at least a preponderance of the evidence, the applicability of § 523(a)(6).” Superior Metal Prods. v. Martin (In re Martin), 321 B.R. 437, 440 (Bankr. N.D.Ohio 2004) (internal citations omitted). In addition, such “discharge exceptions are to be narrowly construed in favor of the debtor,” Monsanto Co. v. Trantham (In re Trantham), 304 B.R. 298, 306 (6th Cir. BAP 2004), citing Meyers v. I.R.S. (In re Meyers), 196 F.3d 622, 624 (6th Cir.1999). Moreover, “[t]he willful and malicious standard is a stringent one.” CMEA Title Agency, Inc. v. Little (In re Little), 335 B.R. 376, 383 (Bankr.N.D.Ohio 2005). When applying § 523(a)(6), “in a great majority of cases, the same factual events that give rise to a finding of ‘willful’ conduct, will likewise be indicative as to whether the debtor acted with malice.” In re Martin, 321 B.R. at 442. However, it is established that “the terms ‘willful’ and ‘malicious’ are separate and distinct concepts, and as a result, both requirements, as defined by federal law, must be established in order to have a debt held nondischargeable.” Graffice v. Grim (In re Grim), 293 B.R. 156, 167 (Bankr.N.D.Ohio 2003). The Supreme Court has held that a ‘willful’ injury “takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998) (emphasis in original). After an in-depth analysis of Geiger, this Court held “that a person will be deemed to have acted willfully, for purposes of denying that person’s discharge in bankruptcy under § 523(a)(6), when that person acts with the intent to cause injury, or is substantially certain that injury will occur.” Grange Mut. Cas. Co. v. Chapman (In re Chapman), 228 B.R. 899, 908 (Bankr.N.D.Ohio 1998)." }, { "docid": "4304463", "title": "", "text": "that the adverse employment actions were wrought with retributivist intent to cause Plaintiffs injury. We now compare the elements of the state causes of action to the elements of section 523(a)(6). (2) Exception to Discharge— 11 U.S.C. § 523(a)(6) As previously stated, section 523(a)(6) of the Bankruptcy Code provides, in relevant part, that “[a] discharge under section 727[or] 1141 ... of this title does not discharge an individual debtor from any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity....” 11 U.S.C. § 523(a)(6) (2012) (emphasis added). The burden of establishing this exception to discharge is on the Plaintiff, who must meet the burden by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 289-90, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). “As the consequences to a debtor of finding a debt excepted from discharge are severe, exceptions to discharge are to be narrowly construed and all doubts should be resolved in the debtor’s favor.” In re Wisell, 2011 WL 3607614, at *7 (citing Denton v. Hyman (In re Hyman), 502 F.3d 61, 66 (2d Cir.2007), cert. denied, 555 U.S. 1097, 129 S.Ct. 895, 173 L.Ed.2d 106 (2009)). Courts from time to time have attempted to list or categorize conduct that has risen to the level of “willful and malicious” under section 523(a)(6). See, e.g., Musilli v. Droomers (In re Musilli), 379 Fed.Appx. 494, 498 (6th Cir.2010) (creating non-exclusive list of willful and malicious conduct). While some courts have suggested that the section 523(a)(6) exception is typically appropriate only where the underlying injury rises to the level of intentional tort, see, e.g., Lockerby v. Sierra, 535 F.3d 1038, 1041-42 (9th Cir.2008) (collecting cases), such a bright line distinction is neither conclusive nor favored. See Jendusa-Nicolai v. Larsen, 677 F.3d 320, 322 (7th Cir.2012) (recognizing that “not even all intentional torts are covered [under § 523(a)(6)].”); Kimmel v. State of N.Y., 76 A.D.3d 188, 906 N.Y.S.2d 403, 407 (N.Y.App.Div. 4th Dept.2010) (holding that discrimination claims under NYSHRL are statutory and do not give rise to tort liability). Had" }, { "docid": "21667986", "title": "", "text": "proceeding. (Doc. No. 14.) On May 19, 2016, the Bankruptcy Court dismissed the action, finding David Berge’s debt to be dischargeable. (Doc, No. 1-3.) The court found that “the only issue at trial was whether the debtor acted with malice.” (Doc. No. 1-2 at 3.) The court found David Berge to be “very credible” and that he was “merely a son who worked for his father and believed what his father told him.” (Id.) Thus, the court found no “malicious intent in that ... not all the elements of 11 U.S.C. § 523(a)(6) have been proven.” (Id.) MarketGraphics appeals that finding to the Court. (Doc. No. 1.) II. STANDARD OF REVIEW The Court reviews the Bankruptcy Court’s conclusions of law de novo, and examines its findings of fact for clear error. In re Dilworth, 560 F.3d 562, 563 (6th Cir. 2009) (citing In re Copper, 426 F.3d 810, 812 (6th Cir. 2005)). The factual finding that an obligation constitutes a nondis-chargeable debt is reviewed for clear error. Sorah v. Sorah (In re Sorah), 163 F.3d 397, 400 (6th Cir. 1998), Discharge exceptions are narrowly construed in favor of the debtor, and the creditor must prove by a preponderance of the evidence that a discharge exception applies. Meyers v. I.R.S. (In re Meyers), 196 F.3d 622, 624 (6th Cir. 1999). III. ANALYSIS The Bankruptcy Court held that “the only issue at trial was whether the debtor acted with malice.” (Doc. No. 1-2 at 3.) MarketGraphics argues that the Bankruptcy Court used the incorrect standard in determining whether David Berge acted with malice. (Doc. No. 15 at 46.) It further argues that the David Berge’s trial testimony conclusively shows that he acted with malice, and the Court therefore should enter judgment for MarketGraphics. (Id. at 53-75.) David Berge argues that the Bankruptcy Court’s judgment is correct. (Doc. No. 17.) A. The Standard A Chapter 7 bankruptcy does not discharge a debtor from any debt “for willful and malicious injury to another entity or to the property of another entity 11 U.S.C. § 523(a)(6). For § 523(a)(6) to apply, a debtor must (1)" }, { "docid": "3766370", "title": "", "text": "Serv. Ctr., Inc., 395 F.3d 410, 413 (7th Cir.2005). Therefore, because the debt reflected by the Final Default Judgment is non-dischargeable under § 523(a)(4), the Court finds that $34,565,369.51 in post-judgment interest (both pre-petition and post-petition) is also non-dischargeable. 3. 11 U.S.C. § 523(a)(6) Section § 523(a)(6) of the Bankruptcy Code provides as follows: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entityf.] 11 U.S.C. § 523(a)(6). In order to be entitled to a determination of non-dischargeability of a debt under § 523(a)(6), a creditor must prove three elements by a preponderance of the evidence (1) that the debtor intended to and caused an injury to the creditor’s property interest; (2) that the debtor’s actions were willful; and (3) that the debt- or’s actions were malicious. See Mulder, 307 B.R. at 641; Ardisson, 272 B.R. at 356. “The word ‘willful’ in (a)(6) modifies the word ‘injury,’ indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Under Geiger and its stringent standards, to satisfy the requirements of § 523(a)(6), a creditor must plead and prove that the debtor actually intended to harm him and not merely that the debtor acted intentionally and he was thus harmed. See id. at 61-62, 118 S.Ct. 974. In other words, the debtor must have intended the tortious consequences of his act. See id.; see also Berkson v. Gulevsky (In re Gulevsky), 362 F.3d 961, 964 (7th Cir.2004). Injuries either negligently or recklessly inflicted do not come within the scope of § 523(a)(6). Geiger, 523 U.S. at 64, 118 S.Ct. 974. The Supreme Court did not define the scope of the term “intent” utilized to describe willful conduct. Recent decisions, however, have found that either a showing of subjective intent to injure the creditor or a showing of a debtor’s subjective knowledge" }, { "docid": "14541421", "title": "", "text": "stated that it felt the variation in definitions is a “pseudo-conflict among circuits” of “different legal definitions of the same statutory language that probably don’t generate different outcomes.” Jendusa-Nicolai, 677 F.3d at 322-23. In attempting to reconcile these variations, the Court of Appeals held that “whatever the semantic confusion, we imagine that all courts would agree that a willful and malicious injury, precluding discharge in bankruptcy of the debt created by the injury, is one that the injurer inflicted knowing he had no legal justification and either desiring to inflict the injury or knowing it was highly likely to result from his act.” Id. at 324. Generally, negligence and recklessness do not constitute willful and malicious injury. In Kawaauhau v. Geiger, the Supreme Court held that “debts arising from recklessly or negligently inflicted injuries do not fall within the compass of § 523(a)(6).” Kawaauhau v. Geiger, 523 U.S. 57, 64, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). In Kawaauhau, the bankruptcy court had concluded that the doctor’s treatment fell so far below the appropriate standard of care that it was willful and malicious, but the Supreme Court held that “nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Id. at 61, 118 S.Ct. 974. Instead, willful and malicious injury naturally overlaps with intentional torts. As the Supreme Court explained in Kawaauhau, “the (a)(6) formulation triggers in the lawyer’s mind the category ‘intentional torts,’ as distinguished from negligent or reckless torts” because “[ijntentional torts generally require that the actor intend the con sequences of an act, not simply the act itself.” Kawaauhau, 523 U.S. at 61-62, 118 S.Ct. 974 (internal quotations omitted). However, the overlap is not exact. Not all intentional torts involve an intent to cause injury. Jendusa-Nicolai, 677 F.3d at 322. For example, “libel can be committed by someone who believes, though negligently or even recklessly, that his libelous statement is privileged because it’s true; such a debt is therefore dischargeable.” Id. (citing Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir.1986)). That leaves the question of whether there exists" }, { "docid": "6678054", "title": "", "text": "to Plaintiff, as of March 31, 2003, Defendant was indebted to Plaintiff on the April and September, 2000, notes in the amount of $206,018.46 plus $50,436.28 in interest. Ón May 10, 2002, Plaintiff filed a Complaint to Determine Dischargeability of Debt. The Complaint was amended on December 3, 2002. The Amended Complaint is in two counts. Count I is filed pursuant to 11 U.S.C. § 523(a)(2)(A). Count II is filed pursuant to 11 U.S.C. § 523(a)(6). Section 523(a)(6) of the Bankruptcy Code provides: (a) A discharge under section 727... of this title does not discharge an individual debtor from any debb- (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. § 523(a)(6). In order to be entitled to a determination of nondischargeability under § 523(a)(6), a plaintiff must prove three elements by a preponderance of the evidence: (1) that the defendant caused an injury; (2) that the defendant’s actions were willful, and (3) that the defendant’s actions were malicious. In re Carlson, 224 B.R. 659, 662 (Bankr.N.D.Ill.1998) (citation omitted), aff'd 2000 WL 226706 (N.D.Ill.2000), aff'd 2001 WL 1313652 (7th Cir.2001). ‘Willful” means intent to cause injury, not merely the commission of an intentional act that leads to injury. Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Under Geiger, to prove nondischargeability of a debt under § 523(a)(6), a plaintiff must show that the defendant actually intended to harm him and not merely that the defendant acted intentionally and he was thus harmed. Id. at 61-62, 118 S.Ct. 974. The defendant must have intended the consequences of his act. Id. Injuries either negligently or recklessly inflicted to not come within the scope, of § 523(a)(6). Id. at 64, 118 S.Ct. 974. The Supreme Court did not define the scope of the term “intent” utilized to describe willful conduct. Subsequent decisions, however, have required either a showing of subjective intent to injure the creditor or a showing of a debtor’s subjective knowledge that injury is substantially certain to result from his acts to establish the" }, { "docid": "10538324", "title": "", "text": "by the Debtors, whether by false pretenses, false representation or actual fraud. America First has failed to prove that either of the Debtors intended to deceive America First. C.Section 523(a)(6) America First’s remaining claim for relief is plead pursuant to § 523(a)(6). Section 523(a)(6) provides that a debtor may not discharge any debt that is “for willful and malicious injury by the debtor to another entity or to the property of another entity.” § 523(a)(6). Federal Rule of Bankruptcy Procedure 4005 places the burden of proof upon America First to prove that the obligation owed to it by the Debtors is nondis- chargeable; and, America First must prove its claim by a preponderance of the evidence. Grogan, 498 U.S. at 291, 111 S.Ct. 654; Dorr, Bentley & Pecha, CPA’s, P.C. v. Pasek (In re Pasek), 983 F.2d 1524, 1526 (10th Cir.1993). 1. Willful and Malicious Injury Because they are distinct elements, America First must establish that the Debtors’ conduct was both willful and malicious. The meaning of the term “willful” has recently been analyzed by the Supreme Court in Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Geiger addressed the dischargeability of a debt based on a medical malpractice judgment arising from the doctor/debtor’s negligent or reckless conduct. The issue was whether § 523(a)(6) includes acts done intentionally which cause injury, or only acts done with the actual intent to cause injury. Id. at 977. The Supreme Court stated, “[I]he word ‘willful’ in (a)(6) modifies the word ‘injury,’ indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Id. This definition represents a very narrow reading of “willful” requiring a deliberate injury akin to that needed to establish an intentional tort. Id. Although Geiger defined “willful,” it did not define “malicious.” Reference is therefore made to Tenth Circuit law to define “malicious.” This requires a brief analysis of three pivotal Tenth Circuit cases interpreting § 523(a)(6) of the Bankruptcy Code, and the impact of Geiger upon the interpretation of, and the interplay between, “willful” and" }, { "docid": "5678509", "title": "", "text": "Moreover, by its plain language, § 523(a)(6) excepts from discharge a debt for willful and malicious injury by the debtor to another entity or to the property of another entity. The term “entity” includes a “person.” 11 U.S.C. § 101(15). The term “person” includes an “individual.” 11 U.S.C. § 101(41). In terms of the derivative claims, the individual the debtor injured was Ms. Jendusa-Nicolai. There is nothing in section 523(a) requiring that the injured individual be the person whose debt is excepted from discharge under § 523(a)(6). Section 523(a)(6) requires only that there be a debt owing by the debtor and that such debt be “for willful and malicious injury by the debtor to another entity.” Here, the debtor is obligated to his former wife’s husband and his own daughters under the state court judgments in their favor. The debt arises from the willful and malicious injury by the debtor to Ms. Jendusa-Nicolai. CONCLUSION In sum, the bankruptcy court correctly concluded the state court judgment determined that Larsen’s conduct caused a willful and malicious injury pursuant to § 523(a)(6). Moreover, the bankruptcy court did not err by deciding that the state court judgments had preclusive effect on the question of nondischargeability of the debts at issue under § 523(a)(6). Thus, after analysis of all potential issues set forth by Larsen in his appeal, the court finds no error on the part of the bankruptcy court warranting reversal or remand and, therefore, affirms its decision. Accordingly, IT IS ORDERED that the bankruptcy court’s grant of summary judgment in favor of the creditors’ § 523(a)(6) claims is AFFIRMED; IT IS FURTHER ORDERED that all appellant’s pending motions (Docket #’s 3, 4, 6, 9, and 10) be and the same are hereby DENIED as moot; and IT IS FURTHER ORDERED that this appeal be and the same is hereby DISMISSED. The clerk of court is ordered to enter judgment accordingly. . The facts are taken from the bankruptcy court’s decision. Jendusa-Nicolai v. Larsen (In re Larsen), 422 B.R. 913 (Bankr.E.D.Wis.2010). . Because copies of the state court civil judgment and the transcript from" }, { "docid": "5678497", "title": "", "text": "495 N.W.2d 327. Larsen’s appeal appears to focus on factor two of the fundamental fairness analysis as he argues the state court’s finding of liability does not equate with a finding that he caused a willful and malicious injury under § 523(a)(6). Yet, Larsen’s claims could also be construed as challenging the first part of the issue preclusion test— whether the issue was actually and necessarily determined. (Appellant’s Reply Br. 3). No matter how his challenge is construed, the main issue to be determined on appeal is whether issue preclusion precludes the dischargeability of the Wisconsin judgment pursuant to § 523(a)(6). The bankruptcy code provides: “A discharge [under the bankruptcy laws] does not discharge an individual debtor from any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). Thus, in order for issue preclusion to apply, the issues of willfulness and maliciousness must have been determined by the Wisconsin judgment. Hence, Larsen cannot discharge the Wisconsin judgment if his conduct giving rise to that judgment was determined to be willful and malicious. Larsen asserts that though his conduct may have been intentional, the “willfulness” standard requires that he actually intend not simply to cause harm or injury in general, but rather to cause the actual injury suffered. Larsen appears to narrow his challenge in this respect to only one of Ms. Jendusa-Nicolai’s injuries resulting from his conduct — the frostbite and subsequent amputation of her toes. (Appellant’s Br. 7). He also challenges whether the state court judgment established a willful and malicious injury with regard to the derivative claims of Ms. Jendusa-Nico-lai’s husband and children. Consequently, the court must determine the meaning of a willful and malicious injury under § 523(a)(6) to reach a conclusion as to whether the issue of willful and malicious injury was determined in state court. A. The Meaning of Willful and Malicious Injury “Malicious,” as used in § 523(a)(6) means in conscious disregard of one’s duties or without just cause or excuse. In re Thirtyacre, 36 F.3d 697, 700 (7th" }, { "docid": "14541420", "title": "", "text": "46 (1944)). In this case, no conspiracy or damages pursuant to a conspiracy were proved. The only evidence of the alleged conspiracy was the same as that already discussed: the shorts, the belt, and the incredible testimony of Samantha Johnson. To the extent that the plaintiffs alleged assault and battery, they alleged that the debtor acted in concert with other parties and hence was part of a conspiracy. Since the assault and battery were not proved, the conspiracy was not proved either. No additional evidence of any plan or scheme was offered. Turning to the plaintiffs’ second claim of social host liability, this case presented the complicated question of whether a claim based in negligence can ever be considered non-dischargeable as a willful and malicious injury. In Jendusa-Nicolai v. Larsen, the Seventh Circuit Court of Appeals reviewed the definitions of willful and malicious injury and noted that “courts are all over the lot in defining this phrase in section 523(a)(6).” Jendusa-Nicolai v. Larsen, 677 F.3d 320, 322 (7th Cir.2012). But the Court of Appeals also stated that it felt the variation in definitions is a “pseudo-conflict among circuits” of “different legal definitions of the same statutory language that probably don’t generate different outcomes.” Jendusa-Nicolai, 677 F.3d at 322-23. In attempting to reconcile these variations, the Court of Appeals held that “whatever the semantic confusion, we imagine that all courts would agree that a willful and malicious injury, precluding discharge in bankruptcy of the debt created by the injury, is one that the injurer inflicted knowing he had no legal justification and either desiring to inflict the injury or knowing it was highly likely to result from his act.” Id. at 324. Generally, negligence and recklessness do not constitute willful and malicious injury. In Kawaauhau v. Geiger, the Supreme Court held that “debts arising from recklessly or negligently inflicted injuries do not fall within the compass of § 523(a)(6).” Kawaauhau v. Geiger, 523 U.S. 57, 64, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). In Kawaauhau, the bankruptcy court had concluded that the doctor’s treatment fell so far below the appropriate standard" }, { "docid": "8800483", "title": "", "text": "elements of a willful and malicious “injury” under section 523(a)(6) and is therefore dischargeable. Suarez does not challenge on appeal the bankruptcy court’s findings that her conduct leading to contempt was willful and malicious. Nevertheless, in the interest of completeness and because Suarez appears without counsel, we address briefly all of the relevant issues presented in a section 523(a)(6) determination such as this. A. The Elements Of A § 523(a)(6) Claim. The plaintiff bears the burden of proving that her claim against a debtor/defendant is excepted from discharge under § 523(a)(6) by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Section 523(a)(6) provides in relevant part: (а) A discharge under 727 ... does not discharge an individual debtor from any debt— (б) for willful and malicious injury by the debtor to another entity or to the property of another entity. A determination whether a particular debt is for “willful and malicious injury by the debtor to another” under section 523(a)(6) requires application of a two-pronged test to apply to the conduct giving rise to the injury. The creditor must prove that the debtor’s conduct in causing the injuries was both willful and malicious. Carrillo v. Su (In re Su), 290 F.3d 1140, 1146-47 (9th Cir.2002); and see Barboza v. New Form, Inc. (In re Barboza), 545 F.3d 702, 711 (9th Cir.2008)(recent case reinforcing Su and the requirement of courts to apply a separate analysis in each prong of “willful” and “malicious”). Willfulness requires proof that the debtor deliberately or intentionally injured the creditor, and that in doing so, the debtor intended the consequences of his act, not just the act itself. Su, 290 F.3d at 1143 (citing Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) for support). The debtor must act with a subjective motive to inflict injury, or with a belief that injury is substantially certain to result from the conduct. Id. at 1146. For conduct to be malicious, the creditor must prove that the debtor: (1) committed a wrongful act; (2) done" } ]

[ { "docid": "17698884", "title": "", "text": "high schools with one possible exception, and in a large number of the elementary schools; that most of the school buildings are completely filled and white children would have to be displaced to let Negro children come in; that there is a difference in scholastic aptitudes of white children and Negro children, the average difference at the first grade level being one and one-half years, and the older the children the greater the gap, so that in high school senior classes it would run around three and one-half years; that, having that differential in mind, there were not enough teachers available to impart adequate instruction to both Negro children and white children; that no child is refused admission because he is retarded. He testified categorically that he was “still continuing segregation based upon races in the Dallas Independent School District.” The appellees insist that the judgment should be affirmed because of the failure of pleading or proof to show that each plaintiff has exhausted his administrative remedies, under Article 2654-7 of the Revised Civil Statutes of Texas, Vernon’s Ann.Civ.St., by appeal to the State Commissioner of Education. Texas State law gave the Board and the Superintendent the power to act, and, in the exercise of such power, they denied the plaintiffs the right to attend public schools of their choice solely on account of their race or color. By such action the plaintiffs have been deprived of their constitutional rights, and they are not required to seek redress from any administrative body before applying to the courts. Bruce v. Stilwell, 5 Cir., 1953, 206 F.2d 554, 556; Carter v. School Board of Arlington County, Va., 4 Cir., 1950, 182 F.2d 531, 536; Bush v. Orleans Parish School Board, D.C.E.D.La.1956, 138 F.Supp. 337, 341, affirmed in Orleans Parish School Board v. Bush, 5 Cir., 1957, 242 F.2d 156, 162; see also Browder v. Gayle, D.C.M.D.Ala.1956, 142 F. Supp. 707, 713, affirmed per curiam 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed. 114. Other applicable principles of law are equally simple and well understood. Overcrowding in public school rooms cannot be lawfully" } ]

[ { "docid": "21243399", "title": "", "text": "Court of Georgia. Since the provision no longer mentions “common schools”, it would appear to be applicable to the University System as well as to the other public, tax-supported schools of the State. The constitutionality of the Appropriations Act and the constitutional provision discussed above is not in issue in this case. However, in determining whether the administrative remedy provided by the Board of Regents is adequate in this case, the court must consider the “freedom” of the President of the University, the Chancellor of the University System, and the Board of Regents to admit plain tiff Negroes to the University of Georgia, a formerly all-white institution. Another consideration in determining the adequacy of the administrative remedy is the time required for exhausting such remedy. The regulation creating the appellate procedure here does not require action on the appeal by the administrative official appealed to within any prescribed period of time, not even within a “reasonable” period of time. As a matter of fact, the appeal taken on June 2, 1960 from the inaction of defendant in regard to plaintiffs’ applications required 122 days for exhaustion of the administrative remedy, the action by the Board of Regents having been taken on October 21,1960, after the court had said in its order filed September 25, 1960 that “[presumably, the Board of Regents, unless it has already done so, will be able to act upon plaintiffs’ pending appeals within thirty (30) days from the date hereof, and, in the event it should fail to do so, this court will deem said appeals denied * * It is axiomatic that plaintiffs are not required to exhaust an administrative remedy which is inadequate. See Adkins v. School Board of City of Newport News, D.C.E.D.Va.1957, 148 F.Supp. 430. Equity does not require the doing of a useless thing. Gibson v. Board of Public Instruction of Dade County, 5 Cir., 1957, 246 F.2d 913. It is the finding of this court that the administrative remedy provided by the regulation of the Board of Regents is inadequate for two reasons: 1) The regulation creating the appellate procedure" }, { "docid": "22643036", "title": "", "text": "Mr. Justice Douglas delivered the opinion of the Court. This suit, which invokes the jurisdiction of the District Court under the Civil Rights Act, is brought to vindicate the rights of plaintiffs who are Negro students in the Illinois public school system. The complaint alleges that Chenot School, St. Clair County, was built and its attendance area boundaries drawn in 1957 so as to make it exclusively a Negro school. It alleges that due to overcrowded conditions in an adjacent' school, Centreville', which is in the same school district, all fifth and sixth grade classes in that school (containing 97% white students) were transferred to Chenot and kept segregated there. It alleges that enrollment at Chenot consists of 251 Negroes and 254 whites, all of the whites being in the group transferred from Centreville-. It alleges that Negro - students, with the exception of the eight transferred from Centreville, attend classes in one part of the school, separate and apart from the whites, and are compelled to use entrances and exits separate from the whites'. It alleges that Chenot school is a segregated school in conflict with the Constitution of the United States; and it prays for e,quitable relief, including registration of.plaintiffs in racially integrated schools pursuant to a plan approved by the District Court. Respondents moved to dismiss the complaint on the ground, inter alia, that the plaintiffs had not exhausted the administrative remedies provided by Illinois law. The District Court granted the motion. 199 F. Supp 403. The Court of Appeals affirmed. 305 F. 2d 783. The case is here on a petition for a writ of certiorari which we granted. 371 U. S. 933. The administrative remedy,, which the lower courts held plaintiffs must first exhaust, is contained in the Illinois School Code. Ill. Rev. Stat. 1961, c. 122, § 22-19. By that Code, 50 residents of a school district or 10°/c, whichever is lesser, can file a complaint with the Superintendent of Public Instruction alleging that a pupil has been segregated in a school on account of race. The Superintendent, on notice to the school board," }, { "docid": "17611622", "title": "", "text": "are Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156, certiorari denied 354 U.S. 921, 77 S.Ct. 1380, 1 L.Ed.2d 1436, and Board of Supervisors of Louisiana State University v. Fleming, 5 Cir., 265 F.2d 736, and see Dorsey v. State Athletic Commission, D.C.La., 168 F.Supp. 149, affirmed 359 U.S. 533, 79 S.Ct. 1137, 3 L.Ed.2d 1028. We think that the decisions in these cases were correct, and we decline the invitation to reverse them. Turning to the next ground of appeal, we find that this contention has also been authoritatively answered several times by this court. We have repeatedly held that the adoption of a pupil placement law does not prevent the Negro students acting either individually and as members of a class from seeking a declaratory judgment of their right to have an ;nd to a parish or other local school policy of racially segregated schools. As we said in the Orleans Parish Schooi Board case, supra [242 F.2d 162] : “Appellees were not seeking specific assignment to particular schools. They, as Negro students, were seeking an end to a local school board rule that required segregation of all Negro students from all white students. As patrons of the Orleans Parish school system they are undoubtedly entitled to have the district court pass on their right to seek relief.” We there cited Jackson v. Rawdon, 5 Cir., 235 F.2d 93, certiorari denied 352 U.S. 925, 77 S.Ct. 221, 1 L.Ed.2d 160. See also Board of Supervisors of Louisiana State University v. Fleming, supra, 265 F.2d at page 738, and Mannings v. Board of Public Instruction of Hillsborough County, 5 Cir., 277 F.2d 370. The third ground of appellants’ appeal is that the state of the record did not permit the granting of a summary judgment. The only arguments made by the appellants on this ground are: “This matter was heard before the Court solely and exclusively upon the complaint filed September 4, 1952, and Judgment rendered on May 25, 1960, or nearly eight years later. Many changes took place during this time which could only have" }, { "docid": "3305390", "title": "", "text": "carried forward similar language. In 1954, a few months after the Supreme Court decided the first Brown case desegregating public schools, Louisiana amended Article XII, Section 1 of the Constitution of 1921. This amendment expressed the state policy on segregated schools: “All public elementary and secondary schools in the State of Louisiana shall be operated separately for white and colored children. This provision is made in the exercise of the state police power to promote and protect public health, morals, better education and the peace and good order in the State, and not because of race. The Legislature shall enact laws to enforce the state police power in this regard.” The Legislature promptly enacted Acts No. 555 and 556 of 1954. Act 555 carried out the constitutional requirement of separate schools and provided penalties for failing to observe it. Act 556 provided for the assignment to a school of each pupil each year by the superintendent of schools of the district in which the pupil lived. In February 1956 this Court held that both the amendment to Article XII Section 1 and the two statutes were invalid, and enjoined the Orleans Parish School Board from requiring and permitting segregation in the parish public schools. Bush v. Orleans Parish School Board, E.D.La. 1956, 138 F.Supp. 337, aff’d 242 F.2d 156, cert. denied 354 U.S. 921, 77 S.Ct. 1380, 1 L.Ed.2d 1436. The Louisiana Legislature immediately enacted a new package of laws. Act 319 of 1956 purported to “freeze” the existing racial status of the public schools in Orleans Parish and to reserve to ,the legislature the power of racial reclassification of the schools. The Court declared this “legal artifice” unconstitutional on its face. Bush v. Orleans Parish School Board, E.D.La.1958, 163 F.Supp. 701, aff’d 5 Cir., 268 F.2d 78. In 1958 the legislature enacted another bundle of school laws. Professor Charles A. Reynard of Louisiana State University has described these as follows: Adhering to its steadfast course of circumventing the Supreme Court’s decisions forbidding the enforced segregation of the races in public education, the Legislature took steps to provide for the" }, { "docid": "22988745", "title": "", "text": "so often held. Exhaustion of internal school system administrative remedies is not required so long as racial segregation is the authoritative accepted policy. Likewise, during such time, judicial effectuation of constitutional freedom from racial discrimination is not dependent upon, nor may it be restricted by, so-called pupil placement statutes such as Article 2900a, 2901a. Mannings v. Board of Public Instruction, 5 Cir., 1960, 277 F.2d 370; Gibson v. Board of Public Instruction, 5 Cir., 1954, 272 F.2d 763; Bush v. Orleans Parish School Board, 5 Cir., 1962, 308 F.2d 491, 498-501; Board of Public Instruction of Duval County, Fla. v. Hon. Bryan Simpson, 1961, 366 U.S. 957, 81 S.Ct. 1944, 6 L.Ed.2d 1267. There is, thus, no occasion for us to explore at this time the scope and validity of those statutes. The result is that the District Court’s order must be affirmed. The cause is therefore remanded for receipt of the plan which must now be filed by the Board in terms satisfactory to the District Court under controlling principles. Bush v. Orleans Parish School Board, 5 Cir., 1962, 308 F.2d 491, on rehearing 308 F.2d 503; Augustus v. The Board of Public Instruction of Escambia County, Florida, 5 Cir., 1962, 306 F.2d 862; Ross v. Dyer, 5 Cir., 1962, 312 F.2d 191. The Court will also “retain jurisdiction throughout the period of transition” for such further and other action as may be required as it retains continuing supervision of the case. Affirmed. . The detailed and able opinion of the District Court, Flax v. Potts, N.D.Tex., 1962, 204 F.Supp. 458, greatly simplifies our treatment of the case. . Tex.Rev.Civ.Stat.Ann. Arts. 2900a, 2901a (Vernon Supp.1962). . Under Art. 2900a § 4 a school district abandoning a racially dual system -without a favorable local electoral vote loses accreditation and forfeits the right to receive State Foundation Program Funds. (Of a total of some 26 million in the Fort Worth budget, State Funds accounted for over 11 million.) In addition “any person” violating such act is guilty of a misdemeanor incurring a fine from $100 to $1,000. Art. 2901a, enacted as" }, { "docid": "23445202", "title": "", "text": "1 of the Louisiana Constitution, LSA, had been adopted in 1954 making segregation through the exercise of the police power part of the constitutional law of that State. Act 555 of 1954, LSA-R.S. 17:331 et seq. had implemented that constitutional requirement by providing that: “All public elementary and secondary schools in the State of Louisiana shall be operated separately for white and colored children.” The next numbered Act 556 of 1954, LSA-R.S. 17:8.1 was the Louisiana pupil assignment law. Both the three-judge court, 138 F.Supp. 336, and the one-judge district court, 138 F.Supp. 337, 341, thought the pupil assignment law plainly unconstitutional on its face. In affirming the judgment of the one-judge district court, the Court of Appeals for the Fifth Circuit, Orleans Parish School Board v. Bush, 5 Cir., 1957, 242 F.2d 156, 164, said in part: “Whatever might be the holding as to the validity of an administrative pupil assignment statute containing reasonably certain or ascertainable standards to guide the official conduct of the superintendent of the local school board and to afford the basis for an effective appeal from arbitrary action, Act 556 is not such a statute. The plaintiffs, seeking to assert their right to attend nonsegregated schools as guaranteed them under the Constitution, would be remitted to an administrative official guided by no defined standards in the exercise of his discretion.8 “ Cf. Carson v. Warlick, 4 Cir., 238 F.2d 724; the North Carolina Pupil Enrollment Act there involved was held by the court to contain adequate standards.” Likewise, the Virginia Pupil Placement Law was held to be so patently unconstitutional on its face as not to call for a three-judge court. Adkins v. School Board of City of Newport News, D.C. E.D.Va.1957, 148 F.Supp. 430, 446. In affirming the judgment in that case, the Court of Appeals for the Fourth Circuit said in part: “ * * * As pointed out by the judge below, * * * this statute furnishes no adequate remedy to plaintiffs because of the fixed and definite policy of the school authorities with respect to segregation and because of" }, { "docid": "17611621", "title": "", "text": "by the Board’s attorney and the Attorney General of the State of Louisiana and his assistants is three-fold. The grounds as stated in the appellants’ brief are: “The lower Court erred in holding: “I. “That the St. Helena Parish School Board, an ' agency of the State of Louisiana, could be made a party de- . fendant in this suit. “II. “That the complainants could seek relief in the District Court until such time as they had exhausted their administrative remedies. “HI. “That the evidence before the Court justified the granting of a Summary Judgment.” The appellants urge us to reconsider the express holding by this court in two previously decided cases to the effect that an action to restrain a school board or board of supervisors of a state educational institution is not a suit against the state of Louisiana and thus forbidden by the Eleventh Amendment of the United States Constitution. The two previous decisions in which we have held that suits similar to that which is now before the Court are permissible are Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156, certiorari denied 354 U.S. 921, 77 S.Ct. 1380, 1 L.Ed.2d 1436, and Board of Supervisors of Louisiana State University v. Fleming, 5 Cir., 265 F.2d 736, and see Dorsey v. State Athletic Commission, D.C.La., 168 F.Supp. 149, affirmed 359 U.S. 533, 79 S.Ct. 1137, 3 L.Ed.2d 1028. We think that the decisions in these cases were correct, and we decline the invitation to reverse them. Turning to the next ground of appeal, we find that this contention has also been authoritatively answered several times by this court. We have repeatedly held that the adoption of a pupil placement law does not prevent the Negro students acting either individually and as members of a class from seeking a declaratory judgment of their right to have an ;nd to a parish or other local school policy of racially segregated schools. As we said in the Orleans Parish Schooi Board case, supra [242 F.2d 162] : “Appellees were not seeking specific assignment to particular schools. They," }, { "docid": "22385889", "title": "", "text": "Judge Brown, speaking for the Court, said: “Properly construed the purpose of the suit was not to achieve specific assignment of specific children to any specific grade or school. The peculiar rights of specific individuals were not in controversy. It was directed at the system-wide policy of racial segregation. It sought obliteration of that policy of system-wide racial discrimination. * * *”’ Even before Potts v. Flax, in Bush v. Orleans Parish School Board, 5 Cir. 1962, 308 F.2d 492, 499, the Court said: “In this aspect of [initial] pupil assignment [to segregated schools] the facts present a clear case where there is not only deprivation of the rights of the individuals directly concerned but deprivation of the rights of Negro school children as a class. As a class, and irrespective of any individual’s right to be admitted on a non-racial basis to a particular school, Negro children in the public schools have a constitutional right to have the public school system administered free from an administrative policy of segregation.”’ See also Ross v. Dyer, 5 Cir. 1963, 312 F.2d 191, 194-95; Augustus v. Board of Public Instruction of Escambia County, 5 Cir. 1963, 306 F.2d 862, 869; Holland v. Board of Public Instruction of Palm Beach County, 5 Cir. 1958, 258 F.2d 730; Orleans Parish School Board v. Bush, 5 Cir. 1957, 242 F.2d 156. Brown was an inevitable, predictable extension of Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114, and McLaurin v. Oklahoma State Regents, 1950, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. Those cases involved separate but equal or identical graduate facilities. Factors “incapable of objective measurement” but crucial to a good graduate education were not available to segregated Negroes. These were the intangible factors that prevented the Negro graduate students from having normal contacts and association with white students. Apartheid made the two groups unequal. In Brown I these same intangibles were found “[to] apply with added force to children in grade and high schools”; educational opportunity in public schools must be made available to all on equal terms." }, { "docid": "22643057", "title": "", "text": "the Superintendent of Public Instruction who shall determine .whether the allegations of the complaint are substantially correct. The Superintendent of Public Instruction shall notify both parties of his decision. If he so determines, he shall request the Attorney General to apply to the appropriate circuit court for such injunctive or other relief as may be necessary to rectify the practice complained of. The provision's of the “Administrative Review Act”, approved May 8, 1945, and all amendments and modifications thereof and the rules adopted pursuant thereto shall apply to and govern all proceedings for the judicial review of any final decision rendered by the Superintendent of Public Instruction pursuant to this Section. Cases such as Mannings v. Board of Public Instruction, 277 F. 2d 370, and Borders v. Rippy, 247 F. 2d 268 (where the school boards had taken no affirmative steps whatever to desegregate the schools), and Orleans Parish School Board v. Bush, 242 F. 2d 156, and Gibson v. Board of Public Instruction, 246 F. 2d 913 (arising in States having school segregation statutes on their books), are wide of the mark in the circumstances of this case. Section 18-12 of the School Code of Illinois provides in part: “No State aid claim may be filed for any district unless the clerk or secretary of the school board executes and files with the Superintendent of Public Instruction, on forms prescribed by him, a sworn statement that the 'district has complied with the requirements of Section 10-22.5 in regard to the non-segregation of pupils on account of color, creed, race or nationality.” As early as 1901 the Supreme Court of Illinois in People v. Mayor of Alton, 193 Ill. 309, 312, 61 N. E. 1077, 1078, construing Art. VIII, § 1, of the Illinois Constitution, held: “The complaint of the relator is that his children have been excluded, on account of their color, from the public school of said city located near his residence and been required to attend a school located a mile and a half distant from his residence, established exclusively for colored children. Such complaint is not" }, { "docid": "10740305", "title": "", "text": "ORDER KOVACHEVTCH, Chief Judge. This cause conies before the Court on the Court’s Order recommitting this matter to the Magistrate Judge for a determination of whether the Hillsborough County school system has attained unitary status (Docket No. 709), the assigned Magistrate Judge’s Report and Recommendation (Docket No. 809), Plaintiffs’ Objections to Report and Recommendation (Docket No. 812), Brief in Support of Plaintiffs’ Objections (Docket No. 813), and Defendants’ Response to Plaintiffs’ Objections to Report and Recommendation (Docket No. 815). This action was filed on December 12,1958. Plaintiffs represent a class consisting of all black children who attended the public schools of Hillsborough County, and the parents and guardians of those children. The complaint alleged that Defendants, the Hills-borough County School Board (formerly Board of Public Instruction of Hillsborough County), acting under the color of state law, had operated, and continued to operate the public school system in Hillsborough County on a racially segregated basis. The Court initially dismissed the complaint for the Plaintiffs’ failure to exhaust administrative remedies; however, the dismissal was reversed and remanded by the court of appeals. See Mannings v. Board of Public Instruction, 277 F.2d 370, 375 (5th Cir.1960). Subsequently, the Court conducted a bench trial and on August 21, 1962, entered an order finding that Defendants were, in fact, maintaining an unlawfully segregated system of public schools. Consequently, the Court enjoined Defendants from operating a racially discriminatory school system and allowed Defendants until October 30, 1962, in which to file a comprehensive plan for the desegregation of the Hillsborough County schools. Despite the several desegregation plans devised by Defendants, the school system remained segregated. See Mannings v. Board of Public Instruction of Hillsborough County, 306 F.Supp. 497 (M.D.Fla.1969). Significantly, in 1971, the United States Supreme Court issued several opinions which defined with particularity the responsibilities of school authorities and the scope of powers of federal courts in eliminating state-imposed segregation in' the public school systems. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); North Carolina State Bd. of Education v. Swann, 402 U.S. 43, 91 S.Ct." }, { "docid": "17224931", "title": "", "text": "real question is, Do they maintain separate schools? The first Brown case decided that separate schools organized on a racial basis are contrary to the Constitution of the United States. The inescapable conclusion is that at the time of the judgment in this case the schools of Memphis were operated on a basis of “white schools” for white children and “Negro schools” for Negroes. The findings of fact that the school zone maps introduced in evidence have no significance as evidence of a biracial school system, and that the defendants do not maintain a dual schedule or pattern of school zone lines, based upon race or color, are contrary to the evidence and clearly erroneous. As we have previously said, the Pupil Assignment Law cannot serve as a plan to organize the schools as a non-racial system. We do not discuss exhaustion of remedies under the statute for the reason that we hold the Pupil Assignment Law is not adequate as a plan for reorganizing the schools into a non-racial system. Kelly v. Board of Education of City of Nashville, 159 F.Supp. 272, 277, D.C.M.D.Tenn.; Gibson v. Board of Public Instruction of Dade County, Florida, 246 F.2d 913, C.A.5. The motion to dismiss the appeal must be and it is hereby overruled. The admission of thirteen Negro pupils, after a scholastic test, out of thirty-eight who made application for transfer, is not desegregation, nor is it the institution of a plan for a non-racial organization of the Memphis school system. We are impressed that the defendants honestly and sincerely desire to comply with the law, but they have pursued the mistaken belief that “full compliance” as required by the Supreme Court can be had under the Pupil Assignment Law. The practice over a long period of time of separate schools in certain geographical areas of our nation has become a way of life in those areas, and we realize that a change is not easy to accomplish. But as this Court must follow the supreme law of the land, as interpreted by the Supreme Court; so must boards of education" }, { "docid": "22385874", "title": "", "text": "integration. However, as this Court’s experience in handling school cases increased, the Court became aware of the frustrating effects of Briggs. In Singleton I we referred to the dictum as “inconsistent with Brown [II] and the later development of decisional and statutory law in the area of civil rights.” 348 F.2d at 730 n. 5. In Singleton II we called it an “oversimplified” construction of Brown I. We added: “The Constitution forbids unconstitutional state action in the form of segregated facilities, including segregated public schools. School authorities, therefore, are under the constitutional compulsion of furnishing a single, integrated school system.” 355 F.2d at 869. Other federal courts have disapproved of the Briggs dictum. The Briggs dictum may be explained as a facet of the Fourth Circuit’s now abandoned view that Fourteenth Amendment rights are exclusively individual rights and in school cases are to be asserted individually after each plaintiff has exhausted state administrative remedies. The Court disallowed class suits because Negro students who had not asked for transfers to white schools had not individually exhausted their remedies and were therefore not similarly situated with the plaintiffs. Thus in Carson v. Warlick, 4 Cir. 1956, 238 F.2d 724, Judge John Parker, for the Court, stated: “There is no question as to the right of these [Negro] school children * * *. They [are to be] admitted, however, as individuals, not as a class or group; and it is as individuals that their rights under the Constitution are asserted. * * * [The] school board must pass upon individual applications made individually to the board. * * ” 238 F.2d at 729. In Covington v. Edwards, 4 Cir. 1959, 264 F.2d 780, 783, the court commented that “the County board has taken no steps to put an end to the planned segregation”, but still held for the board for failure of the plaintiffs to exhaust their remedies and for filing the suit as a class action. As late as 1961, a district court observed: “It can fairly be said that what the children and their parents are still seeking is only a" }, { "docid": "11134489", "title": "", "text": "be withdrawn at any time. The Board contends also that since the plaintiffs do not reside in Bossier Parish, they cannot file a class action representing all Negroes who reside in Bossier Parish. The district court denied the defendant’s motion to dismiss. The court granted the plaintiff’s motion for a summary judgment and issued an injunction ordering the school authorities to submit a desegregation plan for Bossier public schools. We affirm. I. The district court found that the United States Department of Health, Education and Welfare provided financial aid to the Bossier Parish school system to the amount of nearly two million dollars between 1951 and 1964 under the provisions of 20 U.S.C. §§ 631-645. In return the school board gave various “assurances” to the United States that children of personnel stationed at Barksdale would be admitted to the schools “on the same terms, in accordance with the laws of the State in which the school district of such agency is situated, as they are available to other children in such school district. * * * ” (Emphasis added.) 20 U.S.C. § 636(b) (1) (F). The court found also that subsequent to the passage of the Civil Rights Act of 1964, the school board accepted payments from the United States amounting to half a million dollars for operation of its schools during the year 1964-65. The able trial judge, in an opinion we adopt as part of the opinion of this Court, held that the plaintiffs have standing to sue: “[Although] these assurances do constitute a contractual agreement * * * [a] 11 Louisiana laws providing for segregation in public schools were declared unconstitutional in Orleans Parish School Board v. Bush, 242 F.2d 156, (5 Cir. 1957) cert. denied, 354 U.S. 921, 77 S.Ct. 1380, 1 L.Ed. 2d 1436 (see also Bush v. Orleans Parish School Board, 188 F.Supp. 916 (E.D.La.1960), aff’d per curiam 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806). These Louisiana laws subsequently were repealed. See La. Acts 1960, 1st Ex. Sess., Nos. 39 and La. Acts 1962, No. 128, § 1. We find no Louisiana" }, { "docid": "22386002", "title": "", "text": "unconstitutionally assigned. Often, even after six to eight years of no desegregation, these transfers were limited to a grade a year. When this law first came before us, we held it to be unconstitutional. Bush v. Orleans Parish School Board, E.D.La.1956, 138 F.Supp. 337, aff’d 242 F.2d 156, cert. den’d 354 U.S. 921, 77 S.Ct. 1380,1 L.Ed.2d 1436 (1957). Later, in a narrowly focused opinion, we held that the Alabama version was constitutional on its face. Shuttlesworth v. Birmingham Board of Education, N.D. Ala.1958, 162 F.Supp. 372, aff’d per curiam, 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145 (1958). As long ago as 1959 and 1960 this Court disapproved of such acts as a reasonable start toward full compliance. Gibson v. Board of Public Instruction of Dade County, 5 Cir., 272 F. 2d 763; Mannings v. Board of Public Instruction of Hillsborough County, 5 Cir., 277 F.2d 370. See also Bush v. Orleans Parish School Board, 5 Cir. 1961, 308 F.2d 491; Evers v. Jackson Municipal Separate School District, 5 Cir. 1964, 328 F.2d 408. “[T]he entire public knows that in fact [the Louisiana law] * * * is being used to maintain segregation. * * * It is not a plan for desegregation at all.” Bush v. Orleans Parish School Board, 308 F.2d at 499-500. . Bush v. Orleans Parish School Board is an example. The board was plagued by bundles of Louisiana statutes aimed at defeating desegregation. There were five extra sessions of the Louisiana legislature in 1960. After the School Board had for three years failed to comply with an order to submit a plan, the district judge wrote one himself. The trial judge simply said: “[A]U children [entering New Orleans public schools] * * * may attend either the formerly all white public schools nearest their homes or the formerly all negro public schools nearest their homes, at their option. B. Children may be transferred from one school to another, provided such transfers are not based on considerations of race”. 204 F.Supp. 568, 571-572. . For example, the order of the able district judge in" }, { "docid": "22386001", "title": "", "text": "of compliance and towards complete compliance with the constitutional requirements of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686. One of the reasons for the impracticability of this method of overseeing the transitional stages of operations of the school boards involved is that, under the Supreme Court’s ‘deliberate speed’ provisions, it has been the duty of the appel--'1'ate courts to interpret and reinterpret this language as time has grown apace, it now being the twelfth school year since the Supreme Court’s decision.” . “The pupil assignment acts have been the principal obstacle to desegregation in the South.” U. S. Comm, on Civil Rights, Civil Rights U.S.A. — Public Schools, Southern States 15, 1962. See Note, The Federal Courts and Integration of Southern Schools: Troubled Status of the Pupil Placement Acts, 62 Colum.L.Rev. 1448, 1471-73 (1962); Bush v. Orleans Parish School Board, 5 Cir. 1962, 308 F.2d 491. Such laws allow carefully screened Negro children, on their application, to transfer to white schools from the segregated schools to which the Negroes were initially unconstitutionally assigned. Often, even after six to eight years of no desegregation, these transfers were limited to a grade a year. When this law first came before us, we held it to be unconstitutional. Bush v. Orleans Parish School Board, E.D.La.1956, 138 F.Supp. 337, aff’d 242 F.2d 156, cert. den’d 354 U.S. 921, 77 S.Ct. 1380,1 L.Ed.2d 1436 (1957). Later, in a narrowly focused opinion, we held that the Alabama version was constitutional on its face. Shuttlesworth v. Birmingham Board of Education, N.D. Ala.1958, 162 F.Supp. 372, aff’d per curiam, 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145 (1958). As long ago as 1959 and 1960 this Court disapproved of such acts as a reasonable start toward full compliance. Gibson v. Board of Public Instruction of Dade County, 5 Cir., 272 F. 2d 763; Mannings v. Board of Public Instruction of Hillsborough County, 5 Cir., 277 F.2d 370. See also Bush v. Orleans Parish School Board, 5 Cir. 1961, 308 F.2d 491; Evers v. Jackson Municipal Separate School District, 5 Cir. 1964, 328 F.2d" }, { "docid": "22988744", "title": "", "text": "for affirmance. In this light, if it was an error to treat the case as a class suit and enter such a decree, such error, if any, was harmless since the decree for all practical purposes would have been the same had it been confined to the Teal or Flax children. As to the remaining contentions of the Board, we find none of any merit. A 3-judge court was certainly not required. Insofar as the Texas statutes asserted require a plebiscite to determine whether a community is going to follow the Constitution of the United States, or will subject school authorities to punishment for compliance with a valid federal court decree prohibiting segregation, the constitutional invalidity of such statute is so palpable as to make a contrary claim frivolous. Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512; Boson v. Rippy, 5 Cir., 1960, 285 F.2d 43, 45, n. 11. Insofar as these statutes are advanced as prescribing statutory machinery which must first be administratively exhausted, we repeat what we have so often held. Exhaustion of internal school system administrative remedies is not required so long as racial segregation is the authoritative accepted policy. Likewise, during such time, judicial effectuation of constitutional freedom from racial discrimination is not dependent upon, nor may it be restricted by, so-called pupil placement statutes such as Article 2900a, 2901a. Mannings v. Board of Public Instruction, 5 Cir., 1960, 277 F.2d 370; Gibson v. Board of Public Instruction, 5 Cir., 1954, 272 F.2d 763; Bush v. Orleans Parish School Board, 5 Cir., 1962, 308 F.2d 491, 498-501; Board of Public Instruction of Duval County, Fla. v. Hon. Bryan Simpson, 1961, 366 U.S. 957, 81 S.Ct. 1944, 6 L.Ed.2d 1267. There is, thus, no occasion for us to explore at this time the scope and validity of those statutes. The result is that the District Court’s order must be affirmed. The cause is therefore remanded for receipt of the plan which must now be filed by the Board in terms satisfactory to the District Court under controlling principles. Bush v. Orleans Parish" }, { "docid": "17224924", "title": "", "text": "a nonracial one. In Kelly v. Board of Education of City of Nashville, 159 F.Supp. 272, 276, D.C.M.D.Tenn., it was held that the administrative remedy under the act was inadequate to end racial discrimination in the public school system of Nashville, Tennessee. In Gibson v. Board of Pubic Instruction of Dade County, Florida, 272 F.2d 763, 766, C.A.5, the court said: “That being true, we cannot agree with the district court that the Pupil Assignment Law, or even that the Pupil Assignment Law plus the Implementing Resolution, in and of themselves, met the requirements of a plan of desegregation of the schools or constituted a ‘reasonable start toward full compliance’ with the Supreme Court’s May 17, 1954, ruling. That law and resolution do no more than furnish the legal machinery under which compliance may be started and effectuated. Indeed, there is nothing in either the Pupil Assignment Law or the Implementing Resolution clearly inconsistent with a continuing policy of compulsory racial segregation.” And in Gibson v. Board of Public Instruction of Dade County, Florida, et al., 246 F.2d 913, 914, C.A.5, the court said, at p. 914: “Neither that nor any other law can justify a violation of the Constitution of the United States by the requirement of racial segregation in the public schools. So long as that requirement continues throughout the public school system of Dade County, it would be premature to consider the effect of the Florida laws as to the assignment of pupils to particular schools.” See also, Mannings v. Board of Public Instruction of Hillsborough County, Florida, 277 F.2d 370, C.A.5. In Parham v. Dove, 271 F.2d 132, C.A. 8, the court required three Negroes, individually, who sought transfers to white schools to exhaust their administrative remedies. However, the court said, at p. 137: “In this field of constitutional paramountcy, a placement or assignment statute is entitled to be accorded recognition only as an implement or adjunctive element on the part of a state for effecting an orderly solution to its desegregation difficulties, in proper relationship to its other school-system problems, but with a subservience to" }, { "docid": "21243400", "title": "", "text": "defendant in regard to plaintiffs’ applications required 122 days for exhaustion of the administrative remedy, the action by the Board of Regents having been taken on October 21,1960, after the court had said in its order filed September 25, 1960 that “[presumably, the Board of Regents, unless it has already done so, will be able to act upon plaintiffs’ pending appeals within thirty (30) days from the date hereof, and, in the event it should fail to do so, this court will deem said appeals denied * * It is axiomatic that plaintiffs are not required to exhaust an administrative remedy which is inadequate. See Adkins v. School Board of City of Newport News, D.C.E.D.Va.1957, 148 F.Supp. 430. Equity does not require the doing of a useless thing. Gibson v. Board of Public Instruction of Dade County, 5 Cir., 1957, 246 F.2d 913. It is the finding of this court that the administrative remedy provided by the regulation of the Board of Regents is inadequate for two reasons: 1) The regulation creating the appellate procedure here does not, at any of the three required steps of the appeal, require action on the appeal by the administrative official appealed to within any prescribed period of time, not even within a “reasonable” period of time; and 2) the administrative officials to whom appeals must be taken are not “free” to admit Negro plaintiffs to the University of Georgia in light of the provisions of the General Appropriations Act of 1956 discussed above. In this connection see Adkins v. School Board of City of Newport News, supra. Plaintiffs have already prosecuted one appeal through administrative channels, which appeal required 122 days for final administrative action. If plaintiffs were required to appeal from defendant’s failure to admit them each quarter for which they made application for admission they would probably use up the normal four-year college attendance period before securing any final administrative action. Plaintiff Hunter has not even yet been able to have her application considered by defendant, although she made a continuing application which was initially received by defendant on July 22," }, { "docid": "3726888", "title": "", "text": "Louisiana State Board of Education v. Allen, 287 F.2d 32, 33 (5th Cir. 1961), cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33 (1961), (action to enjoin State Board of Education from excluding Negroes from a trade school); Orleans Parish School Board v. Bush, 242 F.2d 156, 160-161 (5th Cir. 1957), cert. denied, 354 U.S. 921, 77 S.Ct. 1380, 1 L.Ed.2d 1436 (1957), (suit by Negro students against parish school board and others for declaratory judgment that state constitutional provision and statutes designed to maintain school segregation were invalid, and for injunctive relief ending such segregation); Arkansas State Highway Commission v. Butler, 105 F.2d 732, 734 (8th Cir. 1939), (suit to enjoin operation of free ferry by agents of state of Arkansas in alleged violation of bridge company’s constitutional rights). We are persuaded to conclude on the basis of the complaint and attached exhibits that this case falls within the doctrine promulgated in Ex parte Young and adhered to by the Supreme Court in subsequent decisions. The substance of the complaint is that the Board of Trustees and the President, in dismissing plaintiff, deprived him of his constitutional rights guaranteed under the First and Fourteenth Amendments. Thus, if the defendants transcended their lawful authority as representatives of the College and wrongfully dismissed plaintiff in violation of the Constitution, they were in effect divested of their official capacity as agents of the State. See Waller v. Professional Insurance Corporation, 299 F.2d 193, 194-195 (5th Cir. 1962). Without the cloak of valid state authority to immunize defendants’ actions plaintiff is allowed a remedy against them individually. Ford Motor Co. v. Department of Treasury of State of Indiana, 323 U.S. 459, 462, 65 S.Ct. 347, 89 L.Ed. 389 (1945). We hold that the District Court properly assumed jurisdiction on the basis of the pleaded allegations and that plaintiff’s suit is not a prohibited action against the State of Arkansas or one of its agencies within the meaning of the Eleventh Amendment. SUFFICIENCY OF THE COMPLAINT 42 U.S.C. § 1983 provides in pertinent part: “Every person who, under color of any statute," }, { "docid": "23047295", "title": "", "text": "it to continue its illegal conduct fall when the Court determines that such sanctions are illegal. Exhaustion of Administrative Remedies The second ground of appellant’s motion to dismiss was its contention that the complaint fails to state a claim on which relief can be granted. The first basis for this attack is that, assuming all the allegations as to unconstitutional acts by the defendant to be true, the plaintiffs have not pursued their administrative remedies for relief before filing of their suit. In asserting this contention appellant seems to overlook completely the fact that when this suit was filed there was no pupil assignment law on the statute books. So far as has been called to our attention the plaintiffs did all they were required to do administratively in 1951 to seek relief from the condition of which they were complaining, i. e. inequality and discrimination between the facilities of white and colored schools and the discrimination resulting per se from the operation of a segregated school system. They applied to the defendant for relief and appealed its adverse decision to the state board which remanded them to the local board. Where else they could go administratively is nowhere suggested by appellant, which argues the entire matter as though there had been a pupil assignment statute on the books. But assuming that the trial court and we should view this question in the light of conditions after the passage of the 1954 acts, which, however, we do not decide, there is still no merit in appellant’s argument. Appellees were not seeking specific assignment to particular schools. They, as Negro students, were seeking an end to a local school board rule that required segregation of all Negro students from all white students. As patrons of the Orleans Parish school system they are undoubtedly entitled to have the district court pass on their right to seek relief. Jackson v. Rawdon, 5 Cir., 235 F.2d 93, cert. denied 352 U.S. 925, 77 S.Ct, 221, 1 L.Ed.2d 160, and see School Board of City of Charlottesville, Va. v. Allen, supra. Moreover, so long as" } ]

[ { "docid": "22239011", "title": "", "text": "HAMILTON, Circuit Judge. We are asked in this appeal to determine whether Lori Wigod has stated claims under Illinois law against her home mortgage servicer for refusing to modify her loan pursuant to the federal Home Affordable Mortgage Program (HAMP). The U.S. Department of the Treasury implemented HAMP to help homeowners avoid foreclosure amidst the sharp decline in the nation’s housing market in 2008. In 2009, Wells Fargo issued Wigod a four-month “trial” loan modification, under which it agreed to permanently modify the loan if she qualified under HAMP guidelines. Wigod alleges that she did qualify and that Wells Fargo refused to grant her a permanent modification. She brought this putative class action alleging violations of Illinois law under common-law contract and tort theories and under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). The district court dismissed the complaint in its entirety under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Wigod v. Wells Fargo Bank, N.A., No. 10 CV 2348, 2011 WL 250501 (N.D.Ill. Jan. 25, 2011). The court reasoned that Wigod’s claims were premised on Wells Fargo’s obligations under HAMP, which does not confer a private federal right of action on borrowers to enforce its requirements. This appeal followed, and it presents two sets of issues. The first set of issues concerns whether Wigod has stated viable claims under Illinois common law and the ICFA. We conclude that she has on four counts. Wigod alleges that Wells Fargo agreed to permanently modify her home loan, deliberately misled her into believing it would do so, and then refused to make good on its promise. These allegations support garden-variety claims for breach of contract or promissory estoppel. She has also plausibly alleged that Wells Fargo committed fraud under Illinois common law and engaged in unfair or deceptive business practices in violation of the ICFA. Wigod’s claims for negligent hiring or supervision and for negligent misrepresentation or concealment are not viable, however. They are barred by Illinois’s economic loss doctrine because she alleges only economic harms arising from a contractual relationship. Wigod’s claim for fraudulent concealment is" } ]

[ { "docid": "19356557", "title": "", "text": "Here, Plaintiff has presented no plausible allegations that the publicly recorded Assignment of Mortgage was false. Whether or not BANA later told Plaintiff at an unspecified time “in writing that the actual owner of the mortgage and note was Defendant [Fannie Mae]” does not change the fact that the recorded Assignment of Mortgage shows that BAÑA — and not Fannie Mae — was assigned the Mortgage. Because the Court is not required to accept unwarranted and unsupported statements of fact that are patently contradicted by the public record, see Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001), Plaintiffs allegations that BANA did not own the debt or misrepresented in the public record that it owned the debt do not state claims for violations of the FDCPA. Plaintiff nonetheless may be able to cure the deficiencies in this claim, and therefore, the Court GRANTS Plaintiff leave to amend Count 4. C. Breach of Contract — RAMP (Count 5) Plaintiff alleges in Count 5 that BAC failed to comply with the requirements of HAMP and “breached its duty to Plaintiff as the intended third party beneficiary of its agreement with [Fannie Mae] and the U.S. Treasury for failing to modify the Plaintiffs loan[.]” Complaint ¶ 96. As discussed above, there is no private right of action for violations of the HAMP guidelines. Further, there is no evidence or allegation of a HAMP Trial Payment Plan (“TPP”), which might support a breach of contract cause of action. See Corvello v. Wells Fargo Bank, NA, 728 F.3d 878, 884 (9th Cir.2013) (“Where, as here, borrowers allege ... that they have fulfilled all of their obligations under the TPP, and the loan servicer has failed to offer a permanent modification, the borrowers have valid claims for breach of the TPP agreement.”). Nor is Plaintiff an intended third-party beneficiary of any HAMP agreement between Defendants and the Treasury. HAMP sets forth guidelines that loan servicers should consider in reviewing a modification request, and does not require that loan servicers agree to modify anything. See Escobedo v. Countrywide Home Loans, Inc., 09CV1557 BTM (BLM)," }, { "docid": "22239081", "title": "", "text": "the 2008 Act that authorized HAMP. Wells Fargo argues that claims like Wigod’s would generate such friction in three ways: First, they would force servicers to modify mortgages in violation of both Treasury directives and the servicers’ contractual obligations to the government. Second, they would invite many uncoordinated lawsuits, exposing servicers to varying standards of conduct. Third, they would discourage servicers from participating in HAMP. The arguments are not persuasive. The first theory is inapplicable because none of Wigod’s claims, at least as she has framed them, would impose on Wells Fargo any duties that go beyond its existing obligations under HAMP. As Wigod puts it, “if Wells Fargo followed the letter of the Program it would not have breached its contracts, acted negligently or fraudulently, or violated the ICFA.” The whole thrust of this suit is that Wells Fargo failed to do what it agreed to do and what HAMP required it to do. The breach of contract and fraudulent misrepresentation claims allege that the TPP Agreement required Wells Fargo to offer Wigod a modification if she qualified under HAMP — and that she did and it didn’t. One Wells Fargo defense, among others, will be that Wigod was not actually qualified, but that presents a factual dispute that cannot be resolved now. Likewise, the ICFA claim alleges that Wells Fargo failed to disclose that it would not follow HAMP guidelines. Again, it would be a complete defense that Wells Fargo did follow HAMP guidelines as they were incorporated into the terms of Wigod’s TPP, but that also presents a factual issue. For each of these claims, the state-law duty allegedly breached is imported from and delimited by federal standards established in HAMP’s program guidelines. Where federal law supplies the standard of care imposed by state law, it is hard to see how they could conflict. See, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431, 448, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (“a state cause of action that seeks to enforce a federal requirement ‘does not impose a requirement that is different from, or in addition to," }, { "docid": "22239041", "title": "", "text": "permanent modification, let alone one that is consistent with HAMP program guidelines. Thus, even without reference to the HAMP modification rules, Wigod’s complaint alleges that Wells Fargo breached its promise to provide her with a permanent modification once she fulfilled the TPP’s conditions. Although Wells Fargo may have had some limited discretion to set the precise terms of an offered permanent modification, it was certainly required to offer some sort of good-faith permanent modification to Wigod consistent with HAMP guidelines. It has offered none. See Corbin on Contracts § 4.1, at 532 (rev. ed.) (“Where the parties intend to contract but defer agreement on certain essential terms until later, the gap can be cured if one of the parties offers to accept any reasonable proposal that the other may make. The other’s failure to make any proposal is a clear indication that the missing term is not the cause of the contract failure.”). We must assume at the pleadings stage that Wigod met each of the TPP’s conditions, and it is undisputed that Wells Fargo offered no permanent modification at all. The terms of the TPP are clear and definite enough to support Wigod’s breach of contract theory. Accord, e.g., Belyea v. Litton Loan Servicing, LLP, No. 10-10931-DJC, 2011 WL 2884964, at *8 (D.Mass. July 15, 2011) (“At a minimum, then, the TPP contains all essential and material terms necessary to govern the trial period repayments and the parties’ related obligations.”), quoting Bosque v. Wells Fargo Bank, N.A., 762 F.Supp.2d 342, 352 (D.Mass.2011). Wigod’s complaint sufficiently pled each element of a breach of contract claim under Illinois law. The relevant documents do not undermine her claim as a matter of law. B. Promissory Estoppel Wigod also asserts a claim for promissory estoppel, which is an alternative means of obtaining contractual relief under Illinois law. See Prentice v. UDC Advisory Services, Inc., 271 Ill.App.3d 505, 207 Ill.Dec. 690, 648 N.E.2d 146, 150 (1995), citing Quake Construction, Inc. v. American Airlines, Inc., 141 Ill.2d 281, 152 Ill.Dec. 308, 565 N.E.2d 990 (1990). Promissory estoppel makes a promise binding where “all the other" }, { "docid": "5275094", "title": "", "text": "offer permanent modifications to borrowers who completed their obligations under the TPPs, unless the banks timely notified those borrowers that they did not qualify for a HAMP modification. Id. at 562-63. Other courts have since followed the reasoning of Wigod. See, e.g., Young v. Wells Fargo Bank, N.A, 717 F.Sd 224, 233-34 (1st Cir.2013); Sutcliffe, 283 F.R.D. at 549-52; West v. JPMorgan Chase Bank, N.A., 214 Cal. App.4th 780, 154 Cal.Rptr.3d 285, 299 (2013). The Seventh Circuit in Wigod• rejected the very proposition that Wells Fargo asserts here, and which the district court accepted when it concluded that there was no contract. Wells Fargo contends, as it did in Wigod, that Paragraph 2G of the TPP means there can be no contract unless the servicer sends the borrower a signed Modification Agreement. It points to the language in 2G stating that “the Loan Documents will not be modified unless and until ... (ii) [the borrower] receive[s] a fully executed copy of a Modification Agreement.” The Seventh Circuit rejected Wells Far-gd’s position because it made the existence of any obligation conditional solely on action of the bank, and conflicted with other provisions of the TPP, including the bank’s promise to send the borrower a Modification Agreement if the borrower complied with the obligations under the TPP and the borrower’s representations continued to be true. Wigod, 673 F.3d at 563. Wells Fargo’s interpretation of the TPP was suspect because it allowed banks to avoid their obligations to borrowers merely by choosing not to send a signed Modification Agreement, even though the borrowers made both accurate representations and the required payments. As the Seventh Circuit put it, Wells Fargo’s interpretation would allow it to “simply refuse to send the Modification Agreement for any reason whatsoever—interest rates went up, the economy soured, it just didn’t like [the Borrower]—and there would still be no breach ... turning] an otherwise straightforward offer into an illusion.” Id. We believe the reasoning in Wigod is sound. Paragraph 2G cannot convert a purported agreement setting forth clear obligations into a decision left to the unfettered discretion of the loan" }, { "docid": "16817269", "title": "", "text": "HAMP, but is suing Wells Fargo under a state-law breach of contract theory based on Michigan law. 1. Whether HAMP preempts or precludes Plaintiffs state-law claim? As a threshold matter, the Court must determine whether Plaintiffs claim is precluded by HAMP. While the Court acknowledges that HAMP does not create a private right of action to enforce its regulations, the Court finds that Plaintiffs claim is different than one asserted under HAMP. Instead of asserting her claim to enforce the regulations under HAMP, Plaintiff is seeking to enforce the TPP between Plaintiff and Wells Fargo. Plaintiffs state-law breach of contract claim, however, fails if HAMP preempts this type of state-law claim. Defendants provide no argument directed at whether HAMP preempts a state-law breach of contract claim, arguing instead that HAMP provides no private right of action. Even so, based on the Court’s own research and review of the cases cited by the parties, the Court does not find that HAMP preempts Plaintiffs state-law claim. While the Sixth Circuit appears not to have addressed this issue, a decision by the Seventh Circuit and several decisions by other district courts guide this Court’s conclusion. In addressing a similar context, the Seventh Circuit determined whether state-law claims were preempted under the Home Owner’s Loan Act (“HOLA”). Similar to HAMP, HOLA regulates federal savings associations and provides no private right of action for enforcement of the statute. In re Ocwen Loan Servicing, LLC Mortg. Servicing Litig., 491 F.3d 638, 642-44 (7th Cir.2007). Most notably, the Seventh Circuit found that, despite HOLA providing exclusive authority to the Office of Thrift Supervision to “regulate the savings and loan industry,” HOLA did not preempt basic state-law causes of actions. Id. at 643-44. The Seventh Circuit explained that it “would be surprising for a federal regulation to forbid the homeowner’s state to give the homeowner a defense based on the mortgagee’s breach of contract.” Id. As subsequent district courts have concluded, the Court finds that the Seventh Circuit’s rationale is equally applicable to state-law claims for breach of contract under HAMP. See Fletcher v. OneWest Bank, FSB, 798" }, { "docid": "19596167", "title": "", "text": "issued a trial loan modification \"under which [the servicer] agreed to permanently modify the loan if she qualified under HAMP guidelines.\" Id . Wells Fargo argued that the \"TPP was not an enforceable offer to permanently modify [the plaintiff's] mortgage because it was conditioned on Wells Fargo's further review of her financial information to ensure she qualified under HAMP.\" Id . at 561. The Court disagreed, and said: [T]he TPP spelled out two conditions precedent to Wells Fargo's obligation to offer a permanent modification: [the plaintiff] had to comply with the requirements of the trial plan, and her financial information had to remain true and accurate. But these were conditions to be satisfied by the promisee ( [plaintiff] ) rather than conditions requiring further manifestation of assent by the promisor (Wells Fargo). These conditions were therefore consistent with treating the TPP as an offer for permanent modification. Id . at 562. The court also found sufficient consideration and found the terms sufficiently definite and certain. Id. at 563-65. \"Before these conditions were met, the loan documents remained unmodified and in force, but under ... the TPP, Wells Fargo still had an obligation to offer [the plaintiff] a permanent modification once she satisfied all her obligations under the agreement.\" Id . at 563 ; see also Oskoui v. J.P. Morgan Chase Bank, N.A. , 851 F.3d 851, 859 (9th Cir. 2017) (\"Once [the plaintiff] made her three payments, Chase was obligated by the explicit language of its offer [in the TPP] to send her an Agreement for her signature 'which will modify the loan as necessary to reflect this new payment amount.' ... Chase must abide by its own language.\"); George v. Urban Settlement Servs. , 833 F.3d 1242, 1260 (10th Cir. 2016) (\"[W]e conclude that the language in BOA's TPP documents clearly and unambiguously promises to provide permanent HAMP loan modifications to borrowers who comply with the terms of their TPPs.\"); Young v. Wells Fargo Bank, N.A. , 717 F.3d 224, 234 (1st Cir. 2013) (finding \"[t]he TPP's plain terms therefore required Wells Fargo to offer her a permanent modification,\"" }, { "docid": "4887080", "title": "", "text": "'measuring' and 'determining' [damages] is really a part of the process of creating them”). . In In re Bank of Am. Home Affordable Modification Program (HAMP) Contract Litig., No. 10-md-02193-RWZ, 2011 WL 2637222 (D.Mass. July 6, 2011) (Zobel, J.), several individual mortgagors brought putative class actions against Bank of America, N.A. (\"BOA”), and its subsidiary, BAC Home Loans Servicing, LP (\"BAC”), alleging that the defendants improperly administered the federal Home Affordable Loan Modification Program (“HAMP”). Id. at *1. The plaintiffs all obtained home mortgage loans from BAC, on which they later defaulted. Id. To avoid foreclosure, they sought to participate in HAMP. Id. Pursuant to HAMP, BAC entered into a standard agreement with some of the plaintiffs for a temporary trial modification of their loan. Id. at *1-2. Under this Temporary Period Plan (\"TPP”), each homeowner made reduced mortgage payments based on his or her financial eligibility. Id. at *1. The TPP promised that, by complying with its terms for three months, the homeowner would receive a permanent HAMP modification on those same terms. Id. Despite the plaintiffs' compliance with all of the TPP’s terms, they never received a permanent loan modification or a written notice that their request for a permanent modification had been denied. Id. at *2. As to these plaintiffs, the court upheld their claims for breach of contract or, in the alternative, promissory estoppel as sufficiently alleged. Id. at *3-4. With respect to the promissory estoppel claim in particular, the court rejected the defendant's argument that \"no plaintiff could reasonably have relied on a promise in the TPP to modify his or her loan because the TPP contained numerous conditions precedent which plaintiffs failed to perform.” Id. at *4. Not only had the plaintiffs \"meticulously” alleged their compliance with all of the conditions precedent, but also the existence of conditions had no effect on the reasonableness of the plaintiffs’ reliance. Id. Similarly, in Bosque v. Wells Fargo Bank, N.A., 762 F.Supp.2d 342, 351 (D.Mass.2011) (Saylor, J.), the plaintiffs signed a TPP with Wells Fargo, but alleged that the bank never offered them a permanent loan modification." }, { "docid": "16817271", "title": "", "text": "F.Supp.2d 925, 931 (N.D.Ill.2011) (“[Wjithout some explicit direction from Congress that it intended programs such as HAMP to have such preemptive force, the Court will not preclude Fletcher from pursuing her basic state common law remedies.”); Bosque v. Wells Fargo Bank, N.A., 762 F.Supp.2d 342, 351-53 (D.Mass.2011) (finding that plaintiffs sufficiently pleaded a breach of contract based on a purported breach of a TPP); Darcy v. CitiFinancial, Inc., No. 1:10-cv-848, 2011 WL 3758805, at *4 (W.D.Mich. Aug. 25, 2011) (agreeing with the rationale in In re Ocwen, Fletcher, and Bosque, and holding that the plaintiffs state-law contract claim was not preempted or precluded by HAMP). Defendants have not cited to any provision under HAMP that preempts Plaintiffs state-law breach of contact claim. Thus, for the reasons discussed, the Court finds no basis upon which to hold that HAMP preempts Plaintiffs claim. 2. Whether Plaintiff failed to submit requested proof of income documents? The Court turns to whether Plaintiff fails to state a breach of the TPP by Wells Fargo because she failed to meet all preliminary conditions under the TPP. For Plaintiff to state a breach of contract under Michigan law, the TPP must meet the essential elements of a contract. In re Brown, 342 F.3d 620, 628 (6th Cir.2003). A contract requires parties competent to contract, proper subject matter, legal consideration, mutuality of agreement, and mutuality of obligation. Hess v. Cannon Twp., 265 Mich.App. 582, 696 N.W.2d 742, 748 (2005). After showing that a valid contract exists, the plaintiff must show: (1) the terms of the contract, (2) a breach of one or more of those terms, and (3) the injury to the plaintiff caused by the breach. Timmis v. Sulzer Intermedies, Inc., 157 F.Supp.2d 775, 777 (E.D.Mich.2001) (citing Webster v. Edward D. Jones & Co., L.P., 197 F.3d 815, 819 (6th Cir.1999)). The Court first finds that Plaintiff has shown that the TPP is a valid contract, subject to the terms and conditions stated in the TPP. See Darcy, 2011 WL 3758805, at *5 (“We conclude that the TPP is a contract between the parties, subject to the" }, { "docid": "3406015", "title": "", "text": "at issue here. C. Courts recognize that tenants can invoke the PTFA as a defense to an unlawful detainer action. See, e.g., Blue Mountain Homes, LCC v. Short, No. 2:13-CV-0913, 2013 WL 1966224, at *2 (E.D.Cal. May 10, 2013); Wells Fargo Bank v. Lapeen, No. C 11-01932, 2011 WL 2194117, at *4 (N.D.Cal. June 6, 2011). Freddie Mac argues that “the PTFA is regarded as a defensive measure only” and that the Miks are making “an end-run around the fact that the PTFA does not provide a private right of action” by bringing state law claims that rest on violations of the Act. To our knowledge, only one court has considered whether violations of the PTFA can be used “offensively” to establish a state law cause of action. See Webb v. Green Tree Servicing, LLC, No. ELH11-2105, 2011 WL 6141464, at *7 (D.Md. Dec. 9, 2011). We hold that they can. In an analogous case, the Seventh Circuit explained why a violation of federal law can support a state law claim, even when — or, perhaps, especially when— there is no private right of action under a federal statute. In Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 554 (7th Cir.2012), Lori Wigod sued Wells Fargo Bank, her home mortgage servicer, for refusing to modify her loan pursuant to the federal Home Affordable Mortgage Program (“HAMP”), asserting violations of Illinois law under common-law contract and tort theories. The district court dismissed the complaint, reasoning that Wigod’s claims were based on Wells Fargo’s obligations under HAMP, which does not provide a private right of action. Id. at 555. The Seventh Circuit held that Wigod adequately pled four claims under Illinois law. Id. at 560-576. It then rejected Wells Fargo’s argument that federal law preempted those claims, including Wells Fargo’s “novel theory” that Wigod’s claims were displaced “because they attempt an ‘end-run’ on the lack of a private right of action under HAMP itself.” Id. at 576. The court observed that “[t]he absence of a private right of action from a federal statute provides no reason to dismiss a claim under" }, { "docid": "16817268", "title": "", "text": "fail because Plaintiffs breach of the TPP is based on HAMP, and HAMP does not provide for a private right of action against lenders who do not provide a loan modification; (2) Wells Fargo was not obligated to provide Plaintiff a permanent loan modification because she failed to submit requested proof of income documents to Wells Fargo; (3) Even if Plaintiff submitted the requested proof of income documents, the TPP does not require Wells Far go to provide a permanent loan modification; and (4) Plaintiff breached the TPP first by failing to submit the requested proof of income documents and therefore is foreclosed from bringing her claim. Plaintiff argues that Wells Fargo and Plaintiff entered into a written contract— the TPP. Plaintiff maintains that she adhered to the TPP, as opposed to Wells Fargo, who at the end of the TPP denied her a permanent loan modification and began foreclosure proceedings on her home. Plaintiff asserts that she provided all requested documents to Wells Fargo. Plaintiff further asserts that she is not suing Defendants under HAMP, but is suing Wells Fargo under a state-law breach of contract theory based on Michigan law. 1. Whether HAMP preempts or precludes Plaintiffs state-law claim? As a threshold matter, the Court must determine whether Plaintiffs claim is precluded by HAMP. While the Court acknowledges that HAMP does not create a private right of action to enforce its regulations, the Court finds that Plaintiffs claim is different than one asserted under HAMP. Instead of asserting her claim to enforce the regulations under HAMP, Plaintiff is seeking to enforce the TPP between Plaintiff and Wells Fargo. Plaintiffs state-law breach of contract claim, however, fails if HAMP preempts this type of state-law claim. Defendants provide no argument directed at whether HAMP preempts a state-law breach of contract claim, arguing instead that HAMP provides no private right of action. Even so, based on the Court’s own research and review of the cases cited by the parties, the Court does not find that HAMP preempts Plaintiffs state-law claim. While the Sixth Circuit appears not to have addressed this issue," }, { "docid": "16817270", "title": "", "text": "a decision by the Seventh Circuit and several decisions by other district courts guide this Court’s conclusion. In addressing a similar context, the Seventh Circuit determined whether state-law claims were preempted under the Home Owner’s Loan Act (“HOLA”). Similar to HAMP, HOLA regulates federal savings associations and provides no private right of action for enforcement of the statute. In re Ocwen Loan Servicing, LLC Mortg. Servicing Litig., 491 F.3d 638, 642-44 (7th Cir.2007). Most notably, the Seventh Circuit found that, despite HOLA providing exclusive authority to the Office of Thrift Supervision to “regulate the savings and loan industry,” HOLA did not preempt basic state-law causes of actions. Id. at 643-44. The Seventh Circuit explained that it “would be surprising for a federal regulation to forbid the homeowner’s state to give the homeowner a defense based on the mortgagee’s breach of contract.” Id. As subsequent district courts have concluded, the Court finds that the Seventh Circuit’s rationale is equally applicable to state-law claims for breach of contract under HAMP. See Fletcher v. OneWest Bank, FSB, 798 F.Supp.2d 925, 931 (N.D.Ill.2011) (“[Wjithout some explicit direction from Congress that it intended programs such as HAMP to have such preemptive force, the Court will not preclude Fletcher from pursuing her basic state common law remedies.”); Bosque v. Wells Fargo Bank, N.A., 762 F.Supp.2d 342, 351-53 (D.Mass.2011) (finding that plaintiffs sufficiently pleaded a breach of contract based on a purported breach of a TPP); Darcy v. CitiFinancial, Inc., No. 1:10-cv-848, 2011 WL 3758805, at *4 (W.D.Mich. Aug. 25, 2011) (agreeing with the rationale in In re Ocwen, Fletcher, and Bosque, and holding that the plaintiffs state-law contract claim was not preempted or precluded by HAMP). Defendants have not cited to any provision under HAMP that preempts Plaintiffs state-law breach of contact claim. Thus, for the reasons discussed, the Court finds no basis upon which to hold that HAMP preempts Plaintiffs claim. 2. Whether Plaintiff failed to submit requested proof of income documents? The Court turns to whether Plaintiff fails to state a breach of the TPP by Wells Fargo because she failed to meet all" }, { "docid": "19356558", "title": "", "text": "and “breached its duty to Plaintiff as the intended third party beneficiary of its agreement with [Fannie Mae] and the U.S. Treasury for failing to modify the Plaintiffs loan[.]” Complaint ¶ 96. As discussed above, there is no private right of action for violations of the HAMP guidelines. Further, there is no evidence or allegation of a HAMP Trial Payment Plan (“TPP”), which might support a breach of contract cause of action. See Corvello v. Wells Fargo Bank, NA, 728 F.3d 878, 884 (9th Cir.2013) (“Where, as here, borrowers allege ... that they have fulfilled all of their obligations under the TPP, and the loan servicer has failed to offer a permanent modification, the borrowers have valid claims for breach of the TPP agreement.”). Nor is Plaintiff an intended third-party beneficiary of any HAMP agreement between Defendants and the Treasury. HAMP sets forth guidelines that loan servicers should consider in reviewing a modification request, and does not require that loan servicers agree to modify anything. See Escobedo v. Countrywide Home Loans, Inc., 09CV1557 BTM (BLM), 2009 WL 4981618, *2-*3 (S.D.Cal. Dec. 15, 2009). The nature of HAMP does not provide Plaintiffs with a private right of action. Parties benefit-ting from a government contract “are generally assumed to be incidental beneficiaries, and may not enforce the contract absent a clear intent to the contrary.” Zendejas v. GMAC Wholesale Mortg. Corp., 1:10-CV00184, 2010 WL 2629899, *3 (E.D.Cal. June 29, 2010) (citing Escobedo, 2009 WL 4981618, at *1-*2). Qualified borrowers under HAMP “ ‘would not be reasonable in relying on the Agreement as manifesting an intention to confer a right on him because the agreement does not require [a loan servicer to] modify eligible loans.’ ” Id. (quoting Escobedo, 2009 WL 4981618, at *3). Thus, Plaintiffs lack standing to challenge HAMP compliance. Kilaita v. Wells Fargo Home Mortg., 2011 WL 6153148, at *9 (N.D.Cal. Dec. 12, 2011). Because this claim is based on alleged violations of the HAMP guidelines, the Court concludes that amendment of the claims would be futile. Count 5 is DISMISSED with prejudice. D. HRS § 480-2 UDAP Claim (Count" }, { "docid": "4887079", "title": "", "text": "is reasonable to conclude that all that is required to achieve justice is to put the promisee in the position he would have been in had he not acted in reliance upon the promise. Id. at 97. The Dixons allege that, before Wells Fargo’s promise induced them to stop making their payments, they were not in default. Returning their loan to non-default status would put them back in their previous position. By the same reasoning, they would be required to resume their mortgage payments in their original amount, with the missed payments being added into the loan balance amortized over the life of the loan. If the Dixons were unable to resume their payments, Wells Fargo could then proceed in foreclosure. But all of this remains speculative; assuming liability, the evidence presented at trial will no doubt illuminate the proper measure of reliance damages that the Court ought fashion. See Fuller & Perdue, supra at 53 (commenting that, “when courts work on the periphery of existing doctrine,” it becomes \"obvious” that the \"the process of 'measuring' and 'determining' [damages] is really a part of the process of creating them”). . In In re Bank of Am. Home Affordable Modification Program (HAMP) Contract Litig., No. 10-md-02193-RWZ, 2011 WL 2637222 (D.Mass. July 6, 2011) (Zobel, J.), several individual mortgagors brought putative class actions against Bank of America, N.A. (\"BOA”), and its subsidiary, BAC Home Loans Servicing, LP (\"BAC”), alleging that the defendants improperly administered the federal Home Affordable Loan Modification Program (“HAMP”). Id. at *1. The plaintiffs all obtained home mortgage loans from BAC, on which they later defaulted. Id. To avoid foreclosure, they sought to participate in HAMP. Id. Pursuant to HAMP, BAC entered into a standard agreement with some of the plaintiffs for a temporary trial modification of their loan. Id. at *1-2. Under this Temporary Period Plan (\"TPP”), each homeowner made reduced mortgage payments based on his or her financial eligibility. Id. at *1. The TPP promised that, by complying with its terms for three months, the homeowner would receive a permanent HAMP modification on those same terms. Id." }, { "docid": "22239040", "title": "", "text": "the Treasury set forth the exact mechanisms for determining borrower eligibility and for calculating modification terms — namely, the waterfall method and the NPV test. These HAMP guidelines unquestionably informed the reasonable expectations of the parties to Wigod’s TPP Agreement, which is actually entitled “Home Affordable Modification Program Loan Trial Period.” In Wigod’s reasonable reading of the agreement, if she “qualified] for the Offer” (meaning, of course, that she qualified under HAMP) and complied with the terms of the TPP, Wells Fargo would offer her a permanent modification. TPP ¶2. To calculate Wigod’s trial modification terms, Wells Fargo was obligated to use the NPV test and the waterfall method to try to bring her monthly payments down to 31 percent of her gross income. ' Although the trial terms were just an “estimate” of the permanent modification terms, the TPP fairly implied that any deviation from them in the permanent offer would also be based on Wells Fargo’s application of the established HAMP criteria and formulas. Wells Fargo, of course, has not offered Wigod any permanent modification, let alone one that is consistent with HAMP program guidelines. Thus, even without reference to the HAMP modification rules, Wigod’s complaint alleges that Wells Fargo breached its promise to provide her with a permanent modification once she fulfilled the TPP’s conditions. Although Wells Fargo may have had some limited discretion to set the precise terms of an offered permanent modification, it was certainly required to offer some sort of good-faith permanent modification to Wigod consistent with HAMP guidelines. It has offered none. See Corbin on Contracts § 4.1, at 532 (rev. ed.) (“Where the parties intend to contract but defer agreement on certain essential terms until later, the gap can be cured if one of the parties offers to accept any reasonable proposal that the other may make. The other’s failure to make any proposal is a clear indication that the missing term is not the cause of the contract failure.”). We must assume at the pleadings stage that Wigod met each of the TPP’s conditions, and it is undisputed that Wells Fargo" }, { "docid": "19356548", "title": "", "text": "grant loan modifications to qualified borrowers, forebear from foreclosure during the time that an application for a loan modification is pending, and advise loan modification applicants of the prohibition on foreclosure sales (see Dkt. No. 11 (Treasury Department’s Supplemental Directive 10-02)). Newell v. Wells Fargo Bank, N.A., 2012 WL 27783, at *5 (N.D.Cal. Jan. 5, 2012). Any alleged violation of the HAMP guidelines, however, does not create a claim for violation of HRS § 667-5. For example, in Soriano v. Wells Fargo Bank, N.A., 2013 WL 310377, at *9 (D.Haw. Jan. 25, 2013), the court allowed evidence of violations of the HAMP guidelines to proceed on a common law negligence theory, but not as a stand-alone claim. Soriano explained: Among other things, the HAMP guidelines provide that, “[t]o ensure that a borrower currently at risk of foreclosure has the opportunity to apply for HAMP, servicers should not proceed with a foreclosure sale until the borrower has been evaluated for the program and, if eligible, an offer to participate in HAMP has been made.” U.S. Dep’t of the Treasury, Home Affordable Modification Program Guidelines, § VII, 610.04.04. This court permits Count IV to proceed to the extent an alleged breach of the HAMP Guidelines is offered as evidence of common law negligence, not to the extent a claim directly under the HAMP Guidelines is asserted. Soriano v. Wells Fargo Bank, N.A., 2013 WL 310377, at *9 (D.Haw. Jan. 25, 2013). Here, in contrast to Soriano, no such separate common law claim has been asserted. Although Plaintiff alleges that no sale can occur while a HAMP loan modification is pending, nothing in HRS § 667-5 proscribes the activities undertaken by Defendants here. Nor does Plaintiff present any factual allegations in support of her claims that the Assignment of Mortgage is invalid, or that she did not receive required notice of the foreclosure. Accordingly, Plaintiff fails to state a claim for violations of HRS Chapter 667. Because these claims are based on the allegedly defective Assignment of Mortgage and violations of the HAMP guidelines, the Court concludes that amendment of these claims would" }, { "docid": "22239080", "title": "", "text": "ICFA claims is that Wells Fargo failed to disclose that it was going to reevaluate her eligibility for a permanent modification — contrary to the terms of both her TPP and HAMP program guidelines — and that it deceived her into believing it would modify her mortgage. Allowing these claims to proceed against Wells Fargo would not create state-law duties for servicing home mortgages, let alone ones that “actually conflict” with HOLA “or federal standards promulgated thereunder.” See Geier v. American Honda Motor Co., 529 U.S. 861, 869, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). In Ocwen, we found that the “straight fraud claims” arising under various state consumer protection statutes were not subject to conflict preemption under HOLA. 491 F.3d at 644-45, 647. Here, too, Wigod’s ICFA claims “sound[ ] like conventional fraud charge[s],” the prosecution of which appears perfectly consistent with federal mortgage rules. Id. at 645. HOLA does not preempt them. Wells Fargo’s second conflict preemption theory is that a finding of liability in Wigod’s suit would frustrate Congressional objectives in enacting the 2008 Act that authorized HAMP. Wells Fargo argues that claims like Wigod’s would generate such friction in three ways: First, they would force servicers to modify mortgages in violation of both Treasury directives and the servicers’ contractual obligations to the government. Second, they would invite many uncoordinated lawsuits, exposing servicers to varying standards of conduct. Third, they would discourage servicers from participating in HAMP. The arguments are not persuasive. The first theory is inapplicable because none of Wigod’s claims, at least as she has framed them, would impose on Wells Fargo any duties that go beyond its existing obligations under HAMP. As Wigod puts it, “if Wells Fargo followed the letter of the Program it would not have breached its contracts, acted negligently or fraudulently, or violated the ICFA.” The whole thrust of this suit is that Wells Fargo failed to do what it agreed to do and what HAMP required it to do. The breach of contract and fraudulent misrepresentation claims allege that the TPP Agreement required Wells Fargo to offer Wigod a" }, { "docid": "4431970", "title": "", "text": "27, 2011, Bohnhoff began this action in state court, claiming breach of contract, breach of mortgagee duty, fraud, negligent misrepresentation, promissory estoppel, unjust enrichment and breach of the Minnesota Residential Mortgage Originator and Servicer Licensing Act (Minnesota Residential Mortgage Act). Bohnhoff also seeks a declaration that she has fully performed her obligations and is entitled to modification of the Note and injunctive relief tolling foreclosure. Wells Fargo timely removed, and moves to dismiss. DISCUSSION I. Loan Modification Wells Fargo first argues that Bohnhoffs claims are per se barred because HAMP lacks a private right of action. The United States Department of the Treasury created HAMP in response to a directive in the Emergency Economic Stabilization Act of 2008 (EESA), 12 U.S.C. §§ 5201-5261. HAMP gives financial incentives to encourage mortgage servicers to modify mortgage loans. See Williams v. Geithner, No. 09-1959, 2009 WL 3757380, at *2 (D.Minn. Nov. 9, 2009). As this court has previously noted, there is no private right of action under HAMP. See McInroy v. BAC Home Loan Servicing, LP, No. 10-4342, 2011 WL 1770947, at *3 (D.Minn. May 9, 2011). HAMP uses a two-step process for modifications. See U.S. Dep’t of Treasury, Supplemental Directive 09-01, Introduction to the Home Affordable Modification Program 14 (2009). Step one involves a trial plan in which a servicer and borrower agree to trial payments. Participating servicers must evaluate several criteria, including a NPV calculation, when considering whether to offer a modification. Williams, 2009 WL 3757380, at *2-3 & *3 n. 3. If a borrower meets all HAMP criteria and makes trial payments, step two involves modification of the underlying loan. See Supplemental Directive 09-01, at 14. The Trial Period Plan is “three months in duration (or longer if necessary to comply with applicable contractual obligations).” Id. at *17. Defendant cites Cox v. Mortgage Electronic Registration Systems, 794 F.Supp.2d 1060 (D.Minn.2011), in support of its argument that Bohnhoff s claims are barred by a lack of private remedy under HAMP. Bohnhoff responds that Cox does not stand for the proposition that HAMP creates an absolute shield for lenders under state law." }, { "docid": "3406016", "title": "", "text": "perhaps, especially when— there is no private right of action under a federal statute. In Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 554 (7th Cir.2012), Lori Wigod sued Wells Fargo Bank, her home mortgage servicer, for refusing to modify her loan pursuant to the federal Home Affordable Mortgage Program (“HAMP”), asserting violations of Illinois law under common-law contract and tort theories. The district court dismissed the complaint, reasoning that Wigod’s claims were based on Wells Fargo’s obligations under HAMP, which does not provide a private right of action. Id. at 555. The Seventh Circuit held that Wigod adequately pled four claims under Illinois law. Id. at 560-576. It then rejected Wells Fargo’s argument that federal law preempted those claims, including Wells Fargo’s “novel theory” that Wigod’s claims were displaced “because they attempt an ‘end-run’ on the lack of a private right of action under HAMP itself.” Id. at 576. The court observed that “[t]he absence of a private right of action from a federal statute provides no reason to dismiss a claim under a state law just because it refers to or incorporates some element of the federal law.” Id. at 581. “To find otherwise would require adopting the novel presumption that where Congress provides no remedy under federal law, state law may not afford one in its stead.” Id. In order to demonstrate “the novelty of Wells Fargo’s argument,” the court pointed to: the many cases in which the Supreme Court has confronted issues of subject matter jurisdiction presented by state common-law claims that incorporate federal standards of conduct, without so much as a peep about whether state law may do so without being preempted. See, e.g., Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) (quiet title action brought under state law “turn[ed] on substantial question[] of federal law” because “the interpretation of the notice statute in the federal tax law” was an “essential element of [plaintiffs] quiet title claim”); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 805-07, 106 S.Ct. 3229," }, { "docid": "22239082", "title": "", "text": "modification if she qualified under HAMP — and that she did and it didn’t. One Wells Fargo defense, among others, will be that Wigod was not actually qualified, but that presents a factual dispute that cannot be resolved now. Likewise, the ICFA claim alleges that Wells Fargo failed to disclose that it would not follow HAMP guidelines. Again, it would be a complete defense that Wells Fargo did follow HAMP guidelines as they were incorporated into the terms of Wigod’s TPP, but that also presents a factual issue. For each of these claims, the state-law duty allegedly breached is imported from and delimited by federal standards established in HAMP’s program guidelines. Where federal law supplies the standard of care imposed by state law, it is hard to see how they could conflict. See, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431, 448, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (“a state cause of action that seeks to enforce a federal requirement ‘does not impose a requirement that is different from, or in addition to, requirements under federal law.’ ”) (internal quotation marks omitted), quoting Lohr, 518 U.S. at 513, 116 S.Ct. 2240 (O’Connor, J., concurring in part and dissenting in part); Lohr, 518 U.S. at 495, 116 S.Ct. 2240 (majority opinion) (“Nothing ... denies Florida the right to provide a traditional damages remedy for violations of common-law duties when those duties parallel federal requirements.”); Bausch v. Stryker Corp., 630 F.3d 546, 556 (7th Cir.2010) (holding that the Food, Drug, and Cosmetic Act did not preempt the plaintiffs tort claims against medical device manufacturer because the state tort duty allegedly breached was parallel to FDA regulations promulgated under the Act; “claims are not ... preempted by federal law to the extent they are based on defendants’ violations of federal law”). For the same reason, we do not foresee any possibility that permitting suits such as Wigod’s will expose mortgage servicers to multiple and varied standards of conduct. So long as state laws do not impose substantive duties that go beyond HAMP’s requirements, loan servicers need only comply with the federal" }, { "docid": "11735092", "title": "", "text": "LIPEZ, Circuit Judge. In an attempt to avert the foreclosure of her home, plaintiff Susan Young sought to modify the terms of her mortgage pursuant to the Home Affordable Modification Program (“HAMP”), a federal initiative that ineentivizes lenders and loan servicers to offer loan modifications to eligible homeowners. When Young’s efforts did not result in a permanent loan modification, she sued defendants Wells Fargo Bank, N.A. (“Wells Fargo”) and American Home Mortgage Servicing, Inc. (“AHMS”), alleging that their conduct during her attempts to modify her mortgage violated Massachusetts law. Defendants moved to dismiss her complaint under Federal Rule of Civil Procedure 12(b)(6). The court granted defendants’ motion in its entirety. Young now appeals the judgment. Young is one of many residential mortgagors who have brought cases against lenders and loan servicers arising out of attempts to modify loans under HAMP. As a result, courts in many jurisdictions, including our own, are grappling with the influx of these cases and the complex legal issues that they raise. Notwithstanding the window that Young’s case provides into the ongoing consequences of the housing market’s rise and fall, our review is confined to the allegations contained in the complaint and the parties’ arguments on appeal. After careful evaluation of Young’s pleading and the parties’ contentions, we affirm the district court’s judgment as to the dismissal of Young’s breach of contract claim under Count II, her claim for breach of the implied covenant of good faith and fair dealing, and her claims for intentional and negligent infliction of emotional distress. We vacate the dismissal of her breach of contract claim under Count I, her claim under Chapter 93A, and her derivative claim for equitable relief, and remand for further proceedings consistent with this opinion. I. A. Background on the Home Affordable Modification Program In an effort to mitigate the destabilizing effects of the financial crisis of 2008, Congress enacted the Emergency Economic Stabilization Act of 2008 (“EESA”), Pub. L. No. 110-343, 122 Stat. 3765. EESA authorized the Secretary of the Treasury to, inter alia, “implement a plan that seeks to maximize assistance for homeowners and" } ]

[ { "docid": "22398667", "title": "", "text": "outer Continental Shelf. “(3) The provisions of this section for adoption of State law as the law of the United States shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf, or the property and natural resources thereof or the revenues therefrom.” 41 Stat. 537, 46 U. S. C. §§761-768. 46 U. S. C. §761 reads: “Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.” Since this topic received scant attention in argument in this Court, additional briefs were requested. The Plymouth, 3 Wall. 20 (1866); The Troy, 208 U. S. 321 (1908); T. Smith & Son, Inc. v. Taylor, 276 U. S. 179 (1928); Hastings v. Mann, 340 F. 2d 910 (C. A. 4th Cir.), cert. denied, 380 U. S. 963 (1965). The Blackheath, 195 U. S. 361 (1904); The Raithmoor, 241 U. S. 166 (1916); Doullut & Williams Co. v. United States, 268 U. S. 33 (1925). “The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” 62 Stat. 496, 46 U. S. C. § 740. For example, Senator Daniel asserted that “the fixed platforms out there do not even touch the waters except for the supporting pipes or ‘legs’ which go through the water down into the ground. I think you can treat those platforms" } ]

[ { "docid": "8619293", "title": "", "text": "barred the claim for his death. For reasons discussed below we conclude that the land law of Texas, the surrogate law for the platform, does control as between these parties with the result that the Monk claim against C & K and Chapman is barred. The death claim for Monk, who perished about seventy-five feet downwind of the platform, presents a jurisdictional conflict between the Death on the High Seas Act and the Outer Continental Shelf Lands Act. DOHSA provides in pertinent part: “Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, . . . the personal representative . . . may maintain a suit for damages in admiralty . . . .”46 U.S.C. § 761. The Lands Act extends the political jurisdiction of the United States “to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures . . . erected thereon,” 43 U.S.C. § 1333(a)(1), and then provides in relevant part: To the extent that they are applicable and not inconsistent . . . with other Federal laws . . . the civil and criminal laws of each adjacent State as of August 7, 1953 are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf .... Id. at § 1333(a)(2). In a line of decisions beginning with Pure Oil Co. v. Snipes, 293 F.2d 60 (CA5 1961), this circuit construed § 1333 of the Lands Act to make federal maritime law, as supplemented by state laws, applicable to injuries occurring on island-platforms on the outer Continental Shelf. See Loffland Bros. Co. v. Roberts, 386 F.2d 540 (CA5 1967), cert. denied, 389 U.S. 1040, 88 S.Ct. 778, 19 L.Ed.2d 830 (1968); Ocean Drilling & Exp. Co." }, { "docid": "23299460", "title": "", "text": "JOHN R. BROWN, Circuit Judge. At the heart of this appeal is the question whether under the Outer Continental Shelf Lands Act, 43 U.S.C.A. §§ 1331-1343, the applicable substantive law for an injury received in connection with a fixed off-shore platform is that of Louisiana, the adjacent state, or the general maritime law. What makes an answer decisive is the problem of timeliness of the suit. For if the occurrence is governed by Louisiana law, it is conceded that a suit filed 22 months after the injury of November 6, 1956, is prescribed by the Louisiana one-year statute. LSA-C.C. Art. 3536. If it is maritime, then the equitable doctrine of laches controls. The injury occurred on a fixed drilling platform owned and controlled by The Pure Oil Company. It rested permanently on vertical upright members securely affixed to the ocean floor. It was not, therefore, the floating-submersible type dealt with in Offshore Co. v. Robison, 5 Cir., 1959, 266 F.2d 769, 1959 AMC 2049. The platform was located in the Gulf of Mexico about 65 miles off the coast of Louisiana. This location was substantially seaward of Louisiana’s historic extended maritime boundary recognized in the Submerged Lands Act, 43 U.S.C.A. §§ 1301-1315. Whether measured in terms of Louisiana’s claim or the boundary finally delineated in United States v. States of Louisiana, Texas, Mississippi, Alabama and Florida, 1960, 363 U.S. 1, 121, at page 66, 80 S.Ct. 961, 4 L.Ed.2d 1025, 1096, this platform was in the area defined in the Outer Continental Shelf Lands Act. As all must be judged finally by this Act, it is important at the outset to emphasize the comprehensive, unqualified, unlimited claim of Federal sovereignty asserted and accomplished by that statute. The Act first provides that “It is declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchapter.” § 1332(a). In a sweeping way it then provides that “The Constitution and laws and civil and" }, { "docid": "8619279", "title": "", "text": "GODBOLD, Circuit Judge: This consolidated litigation arises out of an offshore oil platform explosion that occurred May 28, 1970, over the outer Continental Shelf and caused extensive property damage and loss of human life on the platform and on a nearby vessel. The normal complexities engendered by such a holocaust are multiplied by the pai’t-platform, part-admiralty factual context which necessitates meshing together the law of admiralty and the state law made the surrogate law of the platform by Rodrigue v. Aetna Cas. & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969). The site of the explosion was an unmanned oil collection and storage platform located in the Gulf of Mexico twelve miles off the cost of Galveston, Texas and permanently affixed to the subsoil of the outer Continental Shelf. It was owned by Chambers and Kennedy (C & K), was maintained and operated by Drilling Engineering, Inc. (DEI) on behalf of C & K under a well-servicing contract, and it consisted primarily of five oil storage tanks with a capacity of I, 000 barrels each and one smaller tank. In March 1970, an agent of the Geological Survey wrote to C & K requesting that it bring its platform into compliance with various safety and pollution regulations. At this time the platform was in a generally deteriorated condition, some of the lateral braces were severely rusted, many of the boards were rotten or oil soaked, it was in need of painting, and in places the floor of the platform was warped. On April 10 C & K shut down production from the satellite wells whose production had been pumped into the tanks for storage, and the next day a barge transported to shore all oil then in the tanks. Pursuant to its well-servicing contract with C & K, DEI began making the required alterations and repairs. DEI furnished a supervisor for the job and contracted with a labor supply firm to furnish pipefitters, welders, painters, and roustabouts. The work consisted of painting, sandblasting, and some “hot work,” such as cutting with acetylene torches and welding. The" }, { "docid": "20564622", "title": "", "text": "safety regulations on their premises. Under the authority of these cases the facts of the instant case reveal that C & K gave DEI an adequate warning as to the condition of the premises, thereby satisfying C & K's common law duty to any subcontractor’s employee who was injured. Nevertheless, this does not extinguish the strict liability imposed upon C & K because of the violation of the government regulations. The violations of the instant safety requirements are undoubtedly a proximate cause of the damages and deaths that occurred. Under all the evidence, it is manifest and indisputable that the loss of life (other than Gaspard), the burning o.f the CARRYBACK and the four men aboard that vessel, and a substantial part of the damage to the platform itself was caused by burning oil rather than the explosion. The failure to remove this oil and the resultant oil-soaked platform was in direct violation of 30 C.F.R. 250.-46. All of the oil except the heavy sludge in the tank bottoms could have been floated out and barged away as was in fact done with a portion of the oil. Therefore, C & K cannot escape the statutory liability imposed upon it by these regulations. LIABILITY OF DEI The responsibilities assigned to DEI by C & K are spelled out in the written well service agreement dated December 1, 1968. In that agreement, DEI contracted to operate the platform and the production equipment. DEI further agreed to follow United States Coast Guard and United States Bureau of Land Management regulations and do their job in a workmanlike manner. “DEI shall take cognizance of all regulations issued by the United States Coast Guard, United States Bureau of Land Management and other regulatory authorities affecting said offshore facilities, and any future amendments and modification thereof, and shall cause said offshore facilities to be maintained and operated in accordance with such regulations (including the preparation and filing of any reports required by such regulations), or if DEI is unable to comply with such regulation, DEI shall promptly notify ZAPATA-C & K, and shall render such" }, { "docid": "22626910", "title": "", "text": "collection of the Tax shall be entered. Jurisdiction over the case is retained in the event that further proceedings are required to implement the judgment. So ordered. Justice Powell took no part in the consideration or decision of this case. The earliest offshore oil production occurred in 1896 off the coast of California. The early ventures were extensions of onshore drilling projects. U. S. Dept, of Interior, Mineral Resource Management of the Outer Continental Shelf, Geological Survey Circular 720, p. 2 (1975). The first offshore well drilled from a mobile platform, the dominant technology used today, located out of sight from land was drilled 12 miles from the Louisiana coast in 1947. Ibid. In its proffer of evidence, the State of Louisiana estimated that there exist over 13,000 wells operating in OCS lands in the Gulf of Mexico. See Proffer of Proof of Louisiana to Special Master 8. According to one source, 948 offshore wells were drilled off the coast of Louisiana in 1978. Braunstein & Allen, Developments in Louisiana Gulf Coast Offshore in 1978, 63 AAPG Bull. 1310 (Aug. 1979). In 1970, South Louisiana, an area including both the onshore and offshore area adjacent to Louisiana, was responsible for the production of approximately 33% of domestic natural gas production. See Federal Power Comm’n, Bureau of Natural Gas, National Gas Supply and Demand, 1971-1990, Staff Rep. No. 2, pp. 20-22 (1972); J. Schanz & H. Frank, Natural Gas in the Future National Energy Pattern, in Regulation of the Natural Gas Producing Industry 18-19 (K. Brown ed. 1972). As of 1973, over 25 trillion cubic feet of natural gas had been produced from Louisiana’s offshore lands, with approximately 77% coming from federal OCS areas. Geological Survey Circular 720, supra, at 28 (Table 13). It has been estimated that the present reserves in the offshore area adjacent to the Gulf States is approximately 38 trillion cubic feet of gas. J. Hewitt, J. Knipmeyer, & E. Schluntz, Estimated Oil and Gas Reserves, Gulf of Mexico Outer Continental Shelf (U. S. Dept, of Interior, Geological Survey, Dec. 31, 1979). See Proffer of Proof of" }, { "docid": "8619281", "title": "", "text": "hot work was generally done at an elevated heliport or at the perimeter of the platform away from the tanks. Since the platform was unmanned it was necessary that there be daily transportation from shore to platform and back to shore for those engaged in and supervising the work. Also, of course, various materials, supplies and equipment had to be transported to and from shore. Commencing May 3 or 4 and pursuant to an oral arrangement between DEI and Dearborn, the nature and consequences of which we will discuss later, the vessel serving these purposes was the CARRYBACK, an all steel, eighty-five foot vessel of 136 gross tons, powered by 670 h. p. twin diesels, having fifteen seats for passengers, and owned by Dearborn. Each day for the period after it arrived from shore and until it returned to shore the CARRYBACK remained in the vicinity of the platform, acting as a service and standby vessel. She carried a galley, cook and food and served meals to platform workmen as desired. She had toilets aboard — there were none on the platform — and workers could, come aboard her to use them. The DEI supervisor, Monk, came aboard her to do office work where he could be away from the wind and noise of the platform and in air-conditioned surroundings. He was permitted to use her ship to shore radio with the permission of the captain. By May 25, labor for the alteration and repair work was being supplied by Chapman Contracting Service (Chapman). Between April 10, when C & K had shut down production from the satellite wells, and May 25, and for reasons not disclosed in the record, the tanks collected about 1,100 barrels of oil. DEI’s job-site supervisors, Rick Chapman of Chapman Contracting, and other executives of C & K and DEI knew that the tanks contained oil. On May 27 representatives of the Geological Survey advised Monk, DEI’s supervisor at the platform, that to comply with antipollution guidelines he would have to remove a valve from one of the equalizing lines between tanks. This was the" }, { "docid": "20564603", "title": "", "text": "with a capacity of 5,000 barrels of oil in a somewhat deteriorated state in 1968. After some discovery wells were drilled, the platform was used to store crude oil which was produced from satellite wells 4,000 feet from the platform. Crude oil from one producing well was piped through a separator to a cylindrical tank called a gun barrel. When this tank filled, the oil flowed into one of five storage tanks, thence through equalizing lines to the other four tanks. The tanks were sounded regularly, and when enough oil had accumulated, it was transported by barge to the shore. C & K hired, under a written well service agreement dated December 1, 1968, the engineering firm of Drilling Engineering, Inc. (DEI) to operate and maintain the platform. This agreement included an indemnity clause that will be thoroughly discussed later. It was the intention of the parties to the contract, C & K and DEI, that all work in question that was to be performed on the platform, including repairs, alterations, production of the wells, and all work necessary to bring the platform up to the standards and regulations set by the United States Geological Survey was to be carried out under the December 1, 1968, contract. The cutting of the equalizer valve was work done under this contract and in compliance therewith. A letter dated April 28, 1970, was nothing more than a report from DEI to C & K on the status and progress of the platform work and, as stated in the letter, an outline of work “required for complaince with United States Geological Survey requirements” (Harvey Exhibit 4). This letter did not constitute a new agreement between the parties. On March 18, 1970, Mr. George Kinsel of United States Geological Survey wrote Lyle Harvey of C & K and suggested that the platform be brought into compliance with 30 C.F.R. 250.49 and 30 C.F.R. 250.46 safety regulations. On April 3, 1970, Mr. Kinsel called Mr. Harvey suggesting that C & K voluntarily shut down the field. On April 8, 1970, all production from all the wells" }, { "docid": "972683", "title": "", "text": "negligence. We hold that Shell is not liable for breach of the federal regulations because the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq., does not provide spe cifically for a civil remedy for violations of the statute or regulations, and because we feel that this is not the type of situation in which a cause of action should be implied or created. See Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). We also conclude that it is impossible for us at the present time to rule on the theory of liability based upon Louisiana Civil Code Art. 2322. After an exhaustive study of Louisiana law, we feel that there is no clear controlling precedent from the highest court in that state, and, consequently, we are compelled to certify the issue to the Louisiana Supreme Court. I. FACTS On May 6,1970, a hot water heater explosion occurred aboard a fixed platform owned by Shell Oil Company in the Gulf of Mexico off the coast of Louisiana. The platform was designated as Shell’s “C” platform, and drilling was being conducted from the platform by a drilling contractor known as Movible Offshore, Inc. (Movible). The individual plaintiffs in this case are the legal representatives of men killed in the explosion, except for Gordon Wallace who sues for personal injury. The plaintiffs were all employees of Movible. To conduct the drilling operations from the platform, Movible had located its modular and movable drilling rig on the platform. The rig consisted of all equipment necessary to drill a well, including a derrick or mast, drawworks, the very large engines which were necessary to power the drilling equipment, and all normal appurtenances to a drilling operation. In addition, Movible had its modular living quarters on the Shell platform which provided a galley area for feeding the men, sleeping quarters, shower and bathroom facilities, and a lounge area. The living quarters unit was equipped with two electric water heaters. One water heater was located in the galley area, and another was located in the pantry area. These water" }, { "docid": "20564606", "title": "", "text": "there was oil in the tanks, so that as of at least May 23rd, Mr. Monk knew there was oil in the tanks. In the course of their work, DEI hired Fenstermaker, Behling, Pollock & Associates, an engineering firm of Lafayette, Louisiana, to make a studied survey of the platform and the anticipated needs for the restoration work contemplated. It is important to note that in the report to C & K developed from the Fenstermaker study, DEI did not recommend incurring the expense of draining any residue oil from the tanks. The platform had been shut down for alterations and repairs for several weeks prior to the casualty. The work on the platform consisted mainly of sandblasting, painting, renovation of the structural members, installation of prefabricated drip pans under the oil tanks, and fitting a closed draining sump system. This work necessitated burning and welding on the platform, but testimony indicates that any hot work was to be done on the end of the platform further-est away from the oil storage tanks. DEI did not have the manpower called for to complete the operations required, thus they had in turn contracted out the actual physical labor needed on the platform to the firm of Hydrotech. However, as of May 23, 1970, DEI had become dissatisfied with Hydrotech’s performance and had decided to hire another firm to supply the men to complete the work. Mr. Williams, president of DEI, contacted Chapman Contracting Service Company (Chapman) to take over the job. On Sunday, May 24th, Ricky Chapman, vice president of Chapman, met with William Ray, a member of the DEI firm and at one time the DEI supervisor on the platform, in Galveston to discuss the job. At that time, Mr. Ray told Mr. Chapman some of the details of the job and the working conditions that existed on the platform, namely, that there was oil in the tanks, that the platform was like working on a bomb, that it was nec essary to use good safety regulations, and that everyone should be extremely cautious. Mr. Ray explained that Mr. Monk," }, { "docid": "12438132", "title": "", "text": "Recar’s argument requires us to consider two questions: (1) does the OCSLA give federal district courts subject matter jurisdiction to adjudicate actions arising under the Act, and (2) does the OCSLA apply to Recar’s action. This court answered the first question in Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223 (5th Cir.1985). In that case, Laredo sued Hunt to recover the contract price for constructing a stationary platform twenty-five miles off the Louisiana coast in the Gulf of Mexico. Hunt defended on grounds that the work was improperly performed. Laredo sought to invoke the admiralty jurisdiction of the court. The district court concluded that it had no admiralty jurisdiction and dismissed the action. On appeal, we agreed that the court had no admiralty jurisdiction but concluded that “because the OCSLA vests district courts with original jurisdiction over cases and controversies arising out of any operation conducted on the Outer Continental Shelf involving the exploration, development, or production of natural resources, we find that the district court is empowered to hear the case.” Id. at 1233. We also agree with Recar that he has alleged facts that bring his case within the provisions of OCSLA. As indicated above, Recar, at the time of his injury was working as the foreman of a maintenance crew engaged in painting and repairing production platforms which were built and maintained for the purpose of producing oil and gas from wells previously drilled. The reach of OCSLA is broad and includes cases “arising out of or in connection with any operation conducted on the Outer Continental Shelf which involves ... production of the minerals_” 43 U.S.C. § 1349(b)(1). Section 1331(m) provides further that “the term ‘production’ means those activities which take place after the successful completion of any means of the removal of mineral including ... maintenance. ...” Thus, the question narrows to whether Recar’s injury, that occurred while he was overseeing the repair and maintenance of the platform, arises out of the production of minerals on the Outer Continental Shelf. We have established a “but for” test to resolve this question. In" }, { "docid": "20564604", "title": "", "text": "and all work necessary to bring the platform up to the standards and regulations set by the United States Geological Survey was to be carried out under the December 1, 1968, contract. The cutting of the equalizer valve was work done under this contract and in compliance therewith. A letter dated April 28, 1970, was nothing more than a report from DEI to C & K on the status and progress of the platform work and, as stated in the letter, an outline of work “required for complaince with United States Geological Survey requirements” (Harvey Exhibit 4). This letter did not constitute a new agreement between the parties. On March 18, 1970, Mr. George Kinsel of United States Geological Survey wrote Lyle Harvey of C & K and suggested that the platform be brought into compliance with 30 C.F.R. 250.49 and 30 C.F.R. 250.46 safety regulations. On April 3, 1970, Mr. Kinsel called Mr. Harvey suggesting that C & K voluntarily shut down the field. On April 8, 1970, all production from all the wells was ordered shut down by Mr. Harvey, an employee of C & K. This order was communicated to Mr. Chenier of DEI. At least as of April 10th all production was shut down. On April 11th all of the oil that was then in the tanks was taken out by means of a barge. Thereafter and sometime between April 11 and May 28, some production out of one of the wells came about and somewhere in the neighborhood of 1,100 barrels of oil was pumped into the tanks. C & K knew that this oil was in the tanks through Mr. Harvey. DEI knew that this oil was in the tanks through Mr. Chenier. At this time, Mr. Ray was DEI’s engineer on the job, and Mr. Ray knew that this oil was in the tanks. On May 23rd, Mr. Ray had to leave the job because of an abscessed tooth and Mr. Monk took over and became the DEI engineering supervisor on the job, working under Mr. Chenier. Mr. Ray told Mr. Monk that" }, { "docid": "23557857", "title": "", "text": "RANDALL, Circuit Judge: In this case, we are called upon to determine whether a district court has subject matter jurisdiction over a contract dispute involving the construction of a stationary-offshore platform on the Outer Continental Shelf outside state territorial waters. We hold that, insofar as the alleged breach of contract relates directly to platform construction, the controversy is one “arising out of, or in connection with” an operation conducted on the Outer Continental Shelf involving the development of mineral resources and therefore is encompassed within the district court’s grant of original jurisdiction under the Outer Continental Shelf Lands Act. Accordingly, we reverse the judgment of the district court and remand with instructions. I. On November 23, 1981, Hunt Oil Company (Hunt) and Laredo Offshore Constructors, Inc., (Laredo) entered into a contract for the transportation and installation of an offshore oil and gas platform to be permanently affixed to the ocean floor on the Outer Continental Shelf. Under the contract, Laredo was to construct the platform at a well site 25 miles off the coast of Louisiana and to furnish all services and materials necessary and incident thereto. The purpose of the platform was to protect the wellhead of a gas well recently completed by Hunt and to provide access to that wellhead during production. The parties agree that the construction of the platform was a necessary step in bringing the well into final production, but that Laredo had nothing to do with either the drilling of the gas well or final oil and gas production. The contract sets forth complete details of the work to be performed by Laredo, terms and conditions of payment, and other responsibilities of the parties. After the transportation of all necessary equipment and labor to the well site, Laredo was to begin construction of the platform by setting a jacket over the wellhead. At that point, four piles were to be driven into the subsurface in order to secure the jacket to the seabed. Once the piles were driven to final penetration, Laredo was to weld the top of the platform jacket legs to the" }, { "docid": "14665945", "title": "", "text": "TUTTLE, Circuit Judge: This appeal, accurately described by the trial court as “a multiple donnybrook” in which theories of initial, contingent and secondary liabilities abound, arose out of an explosion and fire which occurred on February 3, 1967 on an offshore stationary (fixed) drilling platform located in the Gulf of Mexico, on the Outer Continental Shelf. Multiple suits for damages for wrongful deaths, personal injuries and property damage growing out of the explosion were filed. Before discussing the merits of these suits, it is necessary briefly to set forth the facts involved and, in so doing, to delineate the relationships of the multiple parties involved. I. FACTS Prior to February 3, 1967, the date of the explosion, Houma Well Service, a drilling contractor under a written agreement with Continental Oil Company, the owner of the stationary platform involved, was drilling oil wells on the platform. The drilling rig utilized was owned by Houma, but prior to the accident, it was sold to Crown Petroleum Corporation. On January 23, 1967, Continental hired an independent contractor to begin testing one of these wells. During these tests, water, gas and oil were produced. This product was run through a separator and thereby stripped of its liquids. These liquids, referred to as “condensate,” were highly volatile and unstable. Though there were various methods of disposing of the condensate, Continental directed that it be poured into a white tank located on the northeast corner of the platform. This tank was normally used for storing diesel fuel, which is not highly volatile, and the record reveals that all those working in the general area thought the tank contained only diesel fuel. Indeed, prior to the explosion, condensate was never even stored on a drilling platform, much less in a “diesel” tank. The tank itself was not plugged and Continental’s representative told no one that it contained condensate. While this testing was proceeding Continental hired a contract welder, Duddle-ston, to do some work on a rack on which a Schlumberger unit was to be placed. Pursuant to this agreement, Jim Dud-dleston, son of the owner of the" }, { "docid": "8619286", "title": "", "text": "K, the heirs of Monk, Cassel, Love, and Armstrong, and by several platform workers and heirs of platform workers. In Texas state court Monk’s estate sued C & K and Freeport Operators (Dear-born’s subsidiary) who removed the cause to the federal District Court in Galveston. Suits in the same District Court, Houston Division, were filed by C & K against DEI and Chapman for damages to its platform, and by the heirs of Armstrong against C & K, DEI, Chapman, and Freeport Operators. The limitation proceedings in the Galveston Division were subsequently consolidated with the Houston suits for trial in the Houston Division, and it is from judgment entered in these consolidated proceedings after a trial without a jury that this appeal is taken. The posture of the parties under the judgment (excluding awards of indemnity) can be summarized this way, insofar as pertinent to this appeal. “Platform Defendants” C & K:. Owner of the platform. Violated safety regulations. DEI: Operator of the platform. Violated safety regulations. Chapman: Labor supplier. Negligent. Other Defendant Dearborn: Owner of the CARRY-BACK. Negligence and unseaworthiness. Claims Love and Cassel: Crew members killed aboard the CARRYBACK. Captain Armstrong: Master, killed aboard the CARRYBACK. Monk: DEI supervisor, killed aboard the CARRYBACK. Property damage: Loss of CARRY-BACK. Liability C. & K, Chapman, DEI and Dearborn: Liable for deaths of Love and Cassel (no contributory fault by Love or Cassel). Liable for death of Captain Armstrong (25% contributory fault). C & K, DEI and Chapman: Liable for loss of CARRYBACK (25% contributory fault by vessel). C & K, Chapman and Dearborn: Liable for death of Monk (25% contributory fault). The District Court held C & K had breached a nondelegable duty imposed by regulations promulgated under the Outer Continental Shelf Lands Act 43 U.S.C. § 1331 et seq., to maintain a safe offshore platform. DEI was found negligent in its supervision of platform operations. DEI employees specifically mentioned were Monk, the platform supervisor at the time of explosion, and Chenier, Monk’s superior, neither of whom “adequately warn[ed] Chapman and its employees of the dangers incident to removal of" }, { "docid": "8619288", "title": "", "text": "the equalizer line.” Chapman was held negligent because of Rick Chapman’s failure to. warn his employees of the presence of oil in the tanks and for inadequate supervision of the welding by Scanlan, Chapman’s pusher. The District Court found that these breaches of duty by Chapman, C & K, and DEI combined with the faults of Dearborn to proximately cause the deaths, injuries, and property damage in issue. Dearborn was found to have breached its legal responsibilities in several respects. The District Court found that CARRYBACK’S master was negligent in mooring her in an unreasonably hazardous location. It found the vessel unseaworthy for being moored as,she was, for failure to comply with 46 U.S.C. § 404, which imposes certain manning and inspection requirements on vessels “carrying passengers for hire,” and for being manned by an incompetent crew. These acts of negligence and conditions of unseaworthiness, the District Court found, combined with the acts of the platform defendants to proximately cause the deaths of those aboard the CARRY-BACK and the loss of the vessel itself. Chapman contests the District Court’s rulings on its negligence. Dearborn contests the rulings on its negligence and unseaworthiness. C & K and DEI do not contest findings of fault on their part but contest certain legal consequences thereof. Monk’s heirs sought to maintain their suit against Dearborn for negligence and unseaworthiness under the general maritime law and the Death on the High Seas Act, 46 U.S.C. §§ 761-768. Representatives of the deceased crew members added to these contentions a claim for negligence under the Jones Act, 46 U.S.C. § 688. All four estates alleged that DOHSA and the general maritime law provide a federal cause of action against the platform defendants — C & K, DEI, and Chapman —but, as we will explore later, there is a question whether these claims fall within § 1333 of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq., which prescribes the applicable law for the subsoil of the outer Continental Shelf and for artificial islands permanently affixed thereto. For the present we need only observe that" }, { "docid": "20564602", "title": "", "text": "Memorandum and Order: SINGLETON, District Judge. Late in the afternoon of May 28, 1970, explosions and fire occurred on the Chambers & Kennedy (C & K) Offshore Oil Platform, an unmanned collection platform for oil wells in Block 189-L, located 12 miles southeast of Galveston, Texas. The holocaust that ensued resulted in the death of five workmen, one supervisor, and three crew members of the standby boat, M/V CARRYBACK, which was moored below the platform. Six other platform workers were hospitalized. The burning vessel was retrieved, but the damage it sustained rendered it beyond repair. All of the tanks on the platform were destroyed or distorted beyond repair. The platform itself received severe damage calling for extensive repairs. The oil in the tanks ultimately found its way to a part of the beaches near Galveston necessitating substantial costs in removing this pollutant. The complexity of the liability issues here in question dictates a thorough review of the events which culminated in this tragic loss of life and property. C & K had purchased the platform with a capacity of 5,000 barrels of oil in a somewhat deteriorated state in 1968. After some discovery wells were drilled, the platform was used to store crude oil which was produced from satellite wells 4,000 feet from the platform. Crude oil from one producing well was piped through a separator to a cylindrical tank called a gun barrel. When this tank filled, the oil flowed into one of five storage tanks, thence through equalizing lines to the other four tanks. The tanks were sounded regularly, and when enough oil had accumulated, it was transported by barge to the shore. C & K hired, under a written well service agreement dated December 1, 1968, the engineering firm of Drilling Engineering, Inc. (DEI) to operate and maintain the platform. This agreement included an indemnity clause that will be thoroughly discussed later. It was the intention of the parties to the contract, C & K and DEI, that all work in question that was to be performed on the platform, including repairs, alterations, production of the wells," }, { "docid": "8619287", "title": "", "text": "of the CARRY-BACK. Negligence and unseaworthiness. Claims Love and Cassel: Crew members killed aboard the CARRYBACK. Captain Armstrong: Master, killed aboard the CARRYBACK. Monk: DEI supervisor, killed aboard the CARRYBACK. Property damage: Loss of CARRY-BACK. Liability C. & K, Chapman, DEI and Dearborn: Liable for deaths of Love and Cassel (no contributory fault by Love or Cassel). Liable for death of Captain Armstrong (25% contributory fault). C & K, DEI and Chapman: Liable for loss of CARRYBACK (25% contributory fault by vessel). C & K, Chapman and Dearborn: Liable for death of Monk (25% contributory fault). The District Court held C & K had breached a nondelegable duty imposed by regulations promulgated under the Outer Continental Shelf Lands Act 43 U.S.C. § 1331 et seq., to maintain a safe offshore platform. DEI was found negligent in its supervision of platform operations. DEI employees specifically mentioned were Monk, the platform supervisor at the time of explosion, and Chenier, Monk’s superior, neither of whom “adequately warn[ed] Chapman and its employees of the dangers incident to removal of the equalizer line.” Chapman was held negligent because of Rick Chapman’s failure to. warn his employees of the presence of oil in the tanks and for inadequate supervision of the welding by Scanlan, Chapman’s pusher. The District Court found that these breaches of duty by Chapman, C & K, and DEI combined with the faults of Dearborn to proximately cause the deaths, injuries, and property damage in issue. Dearborn was found to have breached its legal responsibilities in several respects. The District Court found that CARRYBACK’S master was negligent in mooring her in an unreasonably hazardous location. It found the vessel unseaworthy for being moored as,she was, for failure to comply with 46 U.S.C. § 404, which imposes certain manning and inspection requirements on vessels “carrying passengers for hire,” and for being manned by an incompetent crew. These acts of negligence and conditions of unseaworthiness, the District Court found, combined with the acts of the platform defendants to proximately cause the deaths of those aboard the CARRY-BACK and the loss of the vessel itself. Chapman" }, { "docid": "8619280", "title": "", "text": "I, 000 barrels each and one smaller tank. In March 1970, an agent of the Geological Survey wrote to C & K requesting that it bring its platform into compliance with various safety and pollution regulations. At this time the platform was in a generally deteriorated condition, some of the lateral braces were severely rusted, many of the boards were rotten or oil soaked, it was in need of painting, and in places the floor of the platform was warped. On April 10 C & K shut down production from the satellite wells whose production had been pumped into the tanks for storage, and the next day a barge transported to shore all oil then in the tanks. Pursuant to its well-servicing contract with C & K, DEI began making the required alterations and repairs. DEI furnished a supervisor for the job and contracted with a labor supply firm to furnish pipefitters, welders, painters, and roustabouts. The work consisted of painting, sandblasting, and some “hot work,” such as cutting with acetylene torches and welding. The hot work was generally done at an elevated heliport or at the perimeter of the platform away from the tanks. Since the platform was unmanned it was necessary that there be daily transportation from shore to platform and back to shore for those engaged in and supervising the work. Also, of course, various materials, supplies and equipment had to be transported to and from shore. Commencing May 3 or 4 and pursuant to an oral arrangement between DEI and Dearborn, the nature and consequences of which we will discuss later, the vessel serving these purposes was the CARRYBACK, an all steel, eighty-five foot vessel of 136 gross tons, powered by 670 h. p. twin diesels, having fifteen seats for passengers, and owned by Dearborn. Each day for the period after it arrived from shore and until it returned to shore the CARRYBACK remained in the vicinity of the platform, acting as a service and standby vessel. She carried a galley, cook and food and served meals to platform workmen as desired. She had toilets aboard" }, { "docid": "13476055", "title": "", "text": "LESLIE H. SOUTHWICK, Circuit Judge: The opinion filed in this case on Novem ber 27, 2012, is WITHDRAWN. This ease arises from the 2010 Deepwa-ter Horizon accident in the Gulf of Mexico. An explosion killed 11 workers, caused the drilling platform to sink, and resulted in an uncontrolled, lengthy and massive release of oil. At Presidential direction, those events prompted the Department of the Interior to prohibit all new and existing oil and gas drilling operations on the Outer Continental Shelf for six months. The district court preliminarily enjoined enforcement of the moratorium. The single issue on appeal is whether Interior’s subsequent actions violated a specific provision of the court’s injunction, justifying a finding of civil contempt. The district court was certainly correct that Interior immediately took steps to avoid the effect of the injunction, but we conclude none of those actions violated the court’s order. We REVERSE. FACTUAL AND PROCEDURAL HISTORY The Deepwater Horizon tragedy occurred on April 20, 2010, as the Trans-ocean drilling crew was preparing for a temporary abandonment of BP’s discovery-well 52 miles from shore in almost 5,000 feet of water in the Gulf of Mexico. The explosion and fire caused the platform to sink two days later. For almost three months, oil gushed from the wellbore in the sea floor. On April 30, the President ordered Secretary of the Interior Ken Salazar to review the event and, within 30 days, to report on “what, if any, additional precautions and technologies should be required to improve the safety of oil and gas exploration and production operations on the outer continental shelf.” That same day, with Order No. 3298, the Secretary established an Outer Continental Shelf Oversight Board. About a week later, the Secretary announced that “as a result of the Deepwater Horizon explosion and spill, beginning April 20 — the date of the explosion — no applications for drilling permits [would] go forward for any new offshore drilling activity” until his report to the President. That report — Increased Safety Measures for Energy Development on the Outer Continental Shelf — was released on May 27. In" }, { "docid": "7156094", "title": "", "text": "PATRICK E. HIGGINBOTHAM, Circuit Judge: On May 6, 1970, a hot water heater exploded aboard a fixed drilling platform in the Gulf of Mexico, killing three workers and injuring six. There followed these cases, which are now appearing before us for the third time. See Olsen v. Shell Oil Co., 561 F.2d 1178 (5th Cir.1977) (Olsen I); Olsen v. Shell Oil Co., 595 F.2d 1099 (5th Cir.1979) (Olsen II). Following the remand in Olsen II, the district court entered a judgment adopting and modifying a special master’s recommendations and awarding damages to plaintiffs Mary Olsen, Christine Carvin, Gordon Wallace, and Argonaut Insurance Co. Defendant Shell Oil Co. and third-party defendant Teledyne Movible Offshore now appeal. Concluding that none of their challenges to the district court’s award of damages has merit, we affirm the carefully considered judgment below. Facts and Procedural History The facts are ably summarized in Judge Fay’s earlier opinion. Olsen I, 561 F.2d at 1180-81. We repeat here only for the context of these appeals. Shell Oil Co. owned the drilling platform fixed ninety miles off the coast of Louisiana. At the time of the accident a contractor, Teledyne Movible Offshore, was drilling from the platform. Movible Offshore had installed a movable drilling rig on the platform and modular living quarters for its employees. The living quarters, which included bathroom and galley facilities, were equipped with two electric hot water heaters. The explosion, on May 6, 1970, of one of the hot water heaters caused the deaths and injuries to Movible Offshore’s employees. It was later discovered that an unsuitable valve in the water heater had allowed pressure to build up, causing the explosion. An insurance company inspector had recommended one type of valve, but Movible Offshore had ordered and installed another. Because the accident occurred on a fixed platform in the Gulf of Mexico, the provisions of the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1356, govern. The OCSLA provides that with respect to the disability or death of an employee engaged in natural resource mining or exploration activity on the outer Continental Shelf, compensation shall" } ]

[ { "docid": "13752909", "title": "", "text": "to notify Degruise of his COBRA benefits by certified mail. CONCLUSION For these reasons, we AFFIRM the district court’s entry of summary judgment for Sprint. . See Lawrence v. Jackson Mack Sales, Inc., 837 F.Supp. 771, 782 (S.D.Miss.1992), (\"Methods of notification which are reasonably calculated to reach the employee or beneficiary are considered to conform to the standard of good faith compliance with the statute.”), aff'd 42 F.3d 642 (5th Cir.1994); Myers v. King’s Daughters Clinic, 912 F.Supp. 233, 236 (W.D.Tex.1996) (same), aff’d 96 F.3d 1445 (5th Cir.1996); see also Bryant v. Food Lion, Inc., 100 F.Supp.2d 346, 367 (D.S.C.2000) (same), aff’d 2001 WL 434566 (4th Cir. Apr. 30, 2001); Keegan v. Bloomingdale’s, Inc., 992 F.Supp. 974, 977 (N.D.Ill.1998) (\"[T]he issue is not whether the former employee actually received notice; the issue is whether the plan administrator 'caused the notice to be sent in a good faith manner reasonably calculated’ to reach the former employee.” (quoting Jachim v. KUTV, Inc., 783 F.Supp. 1328, 1333-34 (D.Utah 1992))); Marsaglia v. L. Beinhauer & Son, Co., 987 F.Supp. 425, 432 (W.D.Pa.1997) (\"[T]he few courts that have considered the matter have determined that a good faith effort that is reasonably calculated to reach the employee satisfies COBRA'S notice requirement.”). . It is worth noting that this whole episode could have been avoided had Sprint taken the added precaution of mailing Degruise his COBRA notification by ordinary first-class mail at the same time it sent the notification by certified mail. Sprint was not legally required to do this, but it would have been a good practice." } ]

[ { "docid": "15014274", "title": "", "text": "Entry 48], at 4. Robinson-Reeder, ACE states, provided this address in her original health insurance enrollment form. See id. Summary judgment is appropriate for ACE on the COBRA claim because there is no genuine issue of material fact that ACE complied with its COBRA notice obligations in good faith. The COBRA notice forms that ACE’s plan administrator mailed to Robinson-Reeder and her husband bear the same address that appears on Robinson-Reeder’s health insurance enrollment form. Compare Def.’s COBRA Opp’n, Exhibit A (enrollment form), with id., Exhibit B (COBRA notice for Jacqueline Robinson-Reeder), and Def.’s Reply in Supp. of its Cross-Mot. for Summ. J. (“Def.’s COBRA Reply”) [Docket Entry 52], Exhibit 1 (COBRA notice for Robert Reeder). The enrollment form does omit Robinson-Reeder’s apartment number, but ACE states — and Robinson-Reeder does not contest — that it was she who filled out the form in its entirety. See Def.’s COBRA Reply at 1; id., Exhibit 2 (Decl. of Altowese McLendon (“McLendon Decl.”)), at ¶ 3 (“Ms. Robinson-Reeder completed all sections of the Enrollment Application from the section entitled ‘Name of Association’ through ‘Section 5.’ ”); id. at ¶ 7 (“I made no changes to the substantive information provided by Ms. Robinson-Reeder on the Enrollment Application.”). Therefore, ACE provided to its plan administrator the address Robinson-Reeder herself provided. And the administrator mailed the COBRA notice to that address. This is sufficient to satisfy ACE’s obligation under COBRA. See Truesdale, 778 F.Supp. at 81. Although the address may have been incomplete, Robinson-Reeder is not entitled to “benefit from her own error.” Id. Not one to give up, Robinson-Reeder argues that ACE elided her apartment number from her address after she completed the form. See Docket Entry 56 at 3 (“Notice the big gap in space after Drive ‘something is missing’ #421 was ‘white out’ by the defendant....” (errors in original)). Accordingly, she states that even though she properly filled out the form, ACE subsequently took action to preclude her from receiving the COBRA notice. This argument is unpersuasive. The Court required ACE to submit, and has now reviewed in camera, Robinson-Reed-er’s original health" }, { "docid": "2168796", "title": "", "text": "employer, complied with COBRA’s notice provisions. Myers, 912 F.Supp. at 236. The employer/administrator provided affidavits and business records to show that it mailed a COBRA letter. The court concluded that this effort was a good faith attempt to notify the plaintiff and dismissed the claim stating, “[p]laintiff did not produce any evidence that the mailing was not done pursuant to company procedure.” Id. Furthermore, the court stated, “the employer presented evidence of the customary mailing practices used in its business and, more importantly, its business records reflected that the notice had been sent.” Id. Similarly, although Roberts claims that she never received a COBRA notice, NHC has presented evidence showing that it followed an established procedure in notifying Roberts. NHC has a system that automatically sends COBRA letters to employees upon the occurrence of a qualifying event. (Miller Aff. at 1. attached as Ex. B to Defs.’ Mem. Opp’n PL’s Mot. Summ. J.) Under this system, when an employee is terminated, a personnel action form (“PAF”) is sent to the payroll department at NHC’s corporate office, and the payroll department enters the informa tíon into the payroll system. Id. If coverage is in place, and the information indicates a qualifying event, the system automatically produces a COBRA letter which is addressed to the employee’s current address on the PAF and mailed in window envelopes. Id. at 2. A “COBRA report” is generated that is stamped with the date the letters were mailed. Id. In addition to proving an established procedure, NHC provides evidence that this procedure was followed in Roberts’s case. Although NHC cannot produce a copy of the actual letter mailed to Roberts, NHC does produce a COBRA report that, pursuant to the procedure described by Miller, is stamped with the date the COBRA letter was mailed to Roberts. (Defs.’ Mem. Opp’n Pl.’s Mot. Summ. J. Ex. A.) Like the plaintiff in Myers, Roberts’s only means of rebuttal is to argue that she did not receive the letter. As the cases cited above indicate, this is insufficient, and NHC has met its burden of proving that it complied with" }, { "docid": "6326739", "title": "", "text": "Hoove v. Mid-America Bldg. Maintenance, Inc., 841 F.Supp. 1523 (D.Kan.1993), the Court declared that “[t]he purpose of the civil enforcement provisions of COBRA is, above all, to put plaintiffs in the same position they would have been in but for the violation.” Id. at 1536 (citing Phillips v. Riverside, Inc., 796 F.Supp. 403, 411 (E.D.Ark.1992)). Wal-Mart relies upon Van Hoove for support of its argument that Chenoweth should not be awarded her medical expenses because she was never in a position to afford COBRA benefits. (Doc. # 36 at 3.) However, this Court rejects Wal-Mart’s interpretation of Van Hoove. Typically, courts rely on Van Hoove to justify reimbursing the plaintiff for medical expenses incurred as a result of not having had the opportunity to elect COBRA coverage. See e.g. Ward v. Bethenergy Mines, Inc., 851 F.Supp. 235, 240 (S.D.W.V.1994); Gaskell v. Harvard C-oop. Society, 762 F.Supp. 1539, 1543 (D.Mass.1991). Wal-Mart does not cite to any cases in which a court has relied upon Van Hoove to support conducting an after-the-fact, speculative inquiry as to whether the plaintiff could have afforded COBRA coverage. As a matter of fact, that argument was rejected by the Tenth Circuit in Smith v. Rogers Galvanizing Co., 128 F.3d 1380 (10th Cir.1997). The circuit court stated that “[i]t is entirely conceivable that, faced with the choice of paying the premiums or going without medical insurance altogether, plaintiffs could have borrowed money, sold assets, or found some other way to pay premiums.” Id. at 1385. The court was clearly concerned with whether the plaintiffs were provided an opportunity to elect coverage based upon having been fully informed of their COBRA rights and refused to engage in speculation as to whether “... plaintiffs would have declined continuation coverage even if they had been fully informed of their rights....” Id. As well, the Sixth Circuit has declared that “providing appropriate notice is a key requirement under COBRA.” McDowell v. Krawchison, 125 F.3d 954, 957 (6th Cir.1997). Notice is necessary “to allow the qualified beneficiary to make an informed decision whether to elect coverage.” Id. at 958. Furthermore, the Third" }, { "docid": "2168795", "title": "", "text": "Although the Fourth Circuit Court of Appeals has not addressed the issue, most courts hold that a good faith attempt to comply with a reasonable interpretation of the provision is sufficient. Myers v. King’s Daughters Clinic, 912 F.Supp. 233, 236 (W.D.Tex.) (citing several cases), aff'd, 96 F.3d 1445 (5th Cir.1996); Jachim v. KUTV Inc., 783 F.Supp. 1328, 1333 (D.Utah 1992) (citing several cases). Accordingly, courts have held that an administrator fulfills its duty to notify a beneficiary by sending notice via first-class mail to the beneficiary’s last known address. Myers, 912 F.Supp. at 236 (citation omitted); Truesdale v. Pacific Holding Co./Hay Adams Div., 778 F.Supp. 77, 81-82 (D.D.C.1991) (citing H.R.Rep. No. 453, 99th Cong., 1st Sess. 653 (1985) and ERISA Technical Release No. 86-2); see also Brown v. Neely Truck Line, Inc., 884 F.Supp. 1534, 1542 (M.D.Ala.1995) (advising the defendant to implement a “systematic policy” to ensure that beneficiaries receive notice). In Myers, although the plaintiff stated that she did not receive a COBRA notice, the court found that the administrator, who was also the employer, complied with COBRA’s notice provisions. Myers, 912 F.Supp. at 236. The employer/administrator provided affidavits and business records to show that it mailed a COBRA letter. The court concluded that this effort was a good faith attempt to notify the plaintiff and dismissed the claim stating, “[p]laintiff did not produce any evidence that the mailing was not done pursuant to company procedure.” Id. Furthermore, the court stated, “the employer presented evidence of the customary mailing practices used in its business and, more importantly, its business records reflected that the notice had been sent.” Id. Similarly, although Roberts claims that she never received a COBRA notice, NHC has presented evidence showing that it followed an established procedure in notifying Roberts. NHC has a system that automatically sends COBRA letters to employees upon the occurrence of a qualifying event. (Miller Aff. at 1. attached as Ex. B to Defs.’ Mem. Opp’n PL’s Mot. Summ. J.) Under this system, when an employee is terminated, a personnel action form (“PAF”) is sent to the payroll department at NHC’s corporate" }, { "docid": "11641696", "title": "", "text": "because it made a “good faith” effort to notify the plan beneficiary. In setting forth that argument, MMC relies on case law stating that “COBRA does not require actual receipt of notification by the plan participant; to the contrary, only a good faith attempt to notify is required.” Ramos v. SEIU Local 74 Welfare Fund, No. 01 Civ. 2700(SAS), 2002 WL 519731, at *5 (S.D.N.Y. Apr. 5, 2002) (citations omitted). This “good faith” standard obligates employers to use means “reasonably calculated” to reach plan participants. See Phillips v. Saratoga Harness Racing, Inc., 233 F.Supp.2d 361, 365 (N.D.N.Y.2002) (citations omitted). Moreover, an employer or plan administrator who “sends proper notice to the covered employee’s last know[n] address is deemed to be in good faith compliance with COBRA’S notification requirements.” Chesney v. Valley Stream Union Free Sch. Dist. No. 24, No. 05 Civ. 5106(DRH) (ETB), 2009 WL 936602, at *4 (E.D.N.Y. Mar. 31, 2009) (internal quotation marks and citation omitted). MMC contends that it fully complied with its obligations under COBRA by providing the Yangas family’s last known address to WageWorks, who, in turn, timely mailed the COBRA notice to Mrs. Vangas. Defs.’ Mem. L. (Doc. 59) 24. It contends that its abbreviation of “Cornwall on Hudson” does not indicate bad faith and, to the contrary, that “Cornwal-lonHuds” is a perfectly acceptable abbreviation of the town name' according to the U.S. Postal Service. Id. at 24-25. Although MMC correctly notes that an employer’s mailing of the required notification to an employee’s “last known address” is deemed to be good faith compliance with COBRA, it fails to directly address the undisputed fact that the address it provided to WageWorks abbreviated the name of the town in which Plaintiffs reside. Indeed, in holding that defendants complied with COBRA’S notification requirement, the court in Chesney specifically noted that there was “no claim by Plaintiff that the address was incorrect.” Chesney, 2009 WL 936602, at *4. And, as the Second Circuit has repeatedly held, only a “properly addressed” piece of mail “placed in the care of the Postal Service is presumed to have been delivered.” Hoffenberg" }, { "docid": "15014287", "title": "", "text": "mailed the COBRA notice to the address Robinson-Reeder provided. See Pl.’s Am. Mot. at 12. The Court, however, viewed the original health insurance form in camera — that is “in chambers.” See Black’s Law Dictionary (8th ed.2004); see also November 23, 2009 Minute Order; Pl.’s Notice [Docket Entry 97] (RobinsonReeder states that she has viewed the original health insurance form). And it concluded on the basis of this in chambers review of the original document that Robinson-Reeder’s address had not been altered in any way. See Robinson-Reeder, 674 F.Supp.2d at 57-58, 2009 WL 4456819 at *7. Second, Robinson-Reeder asserts that ACE did not comply with its COBRA notice obligations because her son, a qualified beneficiary of her health plan, did not receive the required notice. See PL’s Am. Reply at 7-8. The Court rejected this claim because the plan administrator provided notice to her husband, which was sufficient under the COBRA statute to provide notice to her son as well. See Robinson-Reeder, 674 F.Supp.2d at 58, 2009 WL 4456819 at *7 n. 9. She now contends that Robert Reeder was not a qualified beneficiary of her health plan, and thus notice to him could not be sufficient to provide notice to her son. See PL’s Am. Reply at 7-8. But this argument contradicts her earlier statement that ACE “failed to provide continuation of coverage to the ex-employee [sic] husband and son.” PL’s Mot. for Summ. J. on the COBRA Claim [Docket Entry 51], at 6 (emphasis added). That is, in her motion for summary judgment she indicated that her husband was a qualified beneficiary of her health insurance. On the basis of that record, the Court concluded ACE had fully complied with its COBRA notice obligations. Robinson-Reeder has provided no explanation for the switch in her position, nor has she explained why she could not have previously raised the argument she now makes in her motions for reconsideration. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (under Rule 60(b)(6) “a party must show ‘extraordinary circumstances’ suggesting that" }, { "docid": "15014271", "title": "", "text": "hearsay cannot create a genuine issue of material fact. ACE is therefore entitled to summary judgment on Robinson-Reeder’s retaliation claim. II. Robinson-Reeder’s COBRA Claim The parties here also each moved for summary judgment on Robinson-Reeder’s claim that “Plaintiff deserves penalties to be assessed under COBRA law” because ACE allegedly mailed a required COBRA notice to an incorrect address, thereby depriving plaintiff of medical benefits. Compl. at p. 17. COBRA requires that plan sponsors of group health plans provide continuing coverage to qualified beneficiaries after certain qualifying events. See 29 U.S.C. §§ 1161 et seq. The statute requires that an employer notify its health plan administrator within thirty days of the occurrence of a qualifying event. See id. at § 1166(a)(2). And it further requires that the administrator notify the qualified beneficiary and her dependents about the possibility of continuing coverage within fourteen days of itself being notified. See id. at § 1166(c). Under 29 U.S.C. § 1132(c)(1), the court may penalize a plan sponsor or plan administrator for failure to provide the proper notice of continuing coverage to a beneficiary. See 29 U.S.C. § 1132(c)(1) (penalties of up to $100 per day from the date of the failure to give notice). Under COBRA law, a plan sponsor or administrator need not ensure that a beneficiary and her dependents actually receive the required notice. Rather, “[a]n employer or plan administrator who sends proper notice by first class mail to the covered employee’s last known address is deemed to be in good faith compliance.” See Truesdale v. Pac. Holding Co./Hay Adams Div., 778 F.Supp. 77, 81 (D.D.C.1991); see also Degruise v. Sprint Corp., 279 F.3d 333, 336 (5th Cir.2002) (good faith compliance does not mean “that employers are required to ensure that plan participants actually receive notice. Rather it merely obligates employers to use means ‘reasonably calculated’ to reach plan participants.”); Liles v. N.Y. City Dep’t of Educ., 516 F.Supp.2d 297, 317 (S.D.N.Y.2007) (“It is not Defendants’ obligation to track down Plaintiff in order to assure that he receives the COBRA forms that were sent to him.”); cf. Legille v. Dann, 544" }, { "docid": "15014273", "title": "", "text": "F.2d 1, 4-5 (D.C.Cir.1976) (“Proof that mail matter is properly addressed, stamped and deposited in an appropriate receptacle has long been accepted as evidence of delivery to the addressee.”). Therefore, whether Robinson-Reeder actually received the COBRA notice is not the real issue here. The parties’ essential disagreement instead is whether ACE provided the correct address to its plan administrator, which mailed the COBRA notice to RobinsonReeder. Robinson-Reeder contends that ACE provided its plan administrator the incorrect address. See Pl.’s Mot. for Summ. J. on COBRA Claim [Docket Entry 56], at 3, 5. According to her, the address ACE provided — -and therefore the address to which the notice was mailed — omitted Robinson-Reeder’s apartment number, although it is uncontested that the address was correct in all other respects. See id. For its part, ACE responds that “ACE and its plan administrator satisfied COBRA’S mailing requirements by sending the continuing coverage notice to the exact address Ms. Robinson-Reeder herself provided.” Def.’s Opp’n to Pl.’s Mot. for Failure to Provide COBRA Notice Penalties (“Def.’s COBRA Opp’n”) [Docket Entry 48], at 4. Robinson-Reeder, ACE states, provided this address in her original health insurance enrollment form. See id. Summary judgment is appropriate for ACE on the COBRA claim because there is no genuine issue of material fact that ACE complied with its COBRA notice obligations in good faith. The COBRA notice forms that ACE’s plan administrator mailed to Robinson-Reeder and her husband bear the same address that appears on Robinson-Reeder’s health insurance enrollment form. Compare Def.’s COBRA Opp’n, Exhibit A (enrollment form), with id., Exhibit B (COBRA notice for Jacqueline Robinson-Reeder), and Def.’s Reply in Supp. of its Cross-Mot. for Summ. J. (“Def.’s COBRA Reply”) [Docket Entry 52], Exhibit 1 (COBRA notice for Robert Reeder). The enrollment form does omit Robinson-Reeder’s apartment number, but ACE states — and Robinson-Reeder does not contest — that it was she who filled out the form in its entirety. See Def.’s COBRA Reply at 1; id., Exhibit 2 (Decl. of Altowese McLendon (“McLendon Decl.”)), at ¶ 3 (“Ms. Robinson-Reeder completed all sections of the Enrollment Application from the" }, { "docid": "2168794", "title": "", "text": "otherwise end the employee’s health insurance coverage. 29 U.S.C.A. § 1161 (West Supp.1997). In the present case, termination is the relevant qualifying event. See 29 U.S.C.A. § 1163(2) (West Supp.1997). The responsibility of notifying employees of their COBRA rights falls on the employer and the plan administrator. The employer must notify the administrator of a qualifying event within thirty days of the event. 29 U.S.C.A. § 1166(a)(2) (West Supp.1997). After receiving such notice, the administrator has fourteen days to notify the employee of her right to elect continuation coverage. 29 U.S.C.A. §§ 1166(a)(4) (West Supp.1997), 1166(c) (West Supp.1997). A. Proof of Notice Roberts argues that NHC failed to notify her of her COBRA rights subsequent to termination. Although NHC states that it mailed her a COBRA letter, Roberts argues that she never received it. Furthermore, Roberts argues that because NHC cannot produce a copy of the letter, NHC cannot prove that it gave Roberts adequate notice. Section 1166(a)(2) provides little guidance on the manner in which an administrator must notify beneficiaries of their COBRA rights. Although the Fourth Circuit Court of Appeals has not addressed the issue, most courts hold that a good faith attempt to comply with a reasonable interpretation of the provision is sufficient. Myers v. King’s Daughters Clinic, 912 F.Supp. 233, 236 (W.D.Tex.) (citing several cases), aff'd, 96 F.3d 1445 (5th Cir.1996); Jachim v. KUTV Inc., 783 F.Supp. 1328, 1333 (D.Utah 1992) (citing several cases). Accordingly, courts have held that an administrator fulfills its duty to notify a beneficiary by sending notice via first-class mail to the beneficiary’s last known address. Myers, 912 F.Supp. at 236 (citation omitted); Truesdale v. Pacific Holding Co./Hay Adams Div., 778 F.Supp. 77, 81-82 (D.D.C.1991) (citing H.R.Rep. No. 453, 99th Cong., 1st Sess. 653 (1985) and ERISA Technical Release No. 86-2); see also Brown v. Neely Truck Line, Inc., 884 F.Supp. 1534, 1542 (M.D.Ala.1995) (advising the defendant to implement a “systematic policy” to ensure that beneficiaries receive notice). In Myers, although the plaintiff stated that she did not receive a COBRA notice, the court found that the administrator, who was also the" }, { "docid": "11641694", "title": "", "text": "light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ ” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir.2004)). However, in opposing a motion for summary judgment, the non-moving party may not rely on unsupported assertions, conjecture or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). The non-moving party must do more than show that there is “some metaphysical doubt as to the material facts.” McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006) (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). To defeat a motion for summary judgment, “the non-moving party must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor.” Senno, 812 F.Supp.2d at 467-68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). III. MMC is Not Entitled to Summary Judgment on Plaintiffs’ COBRA Claim Defendant MMC seeks summary judgment on Plaintiffs’ COBRA claim. Specifically, Plaintiffs contend that MMC failed to provide them with notice of their COBRA rights, in violation of 29 U.S.C. § 1166(a)(4)(A), because the notice was incorrectly addressed to “CornwallonHuds” instead of “Cornwall on Hudson” and, consequently, was never received by Plaintiffs. The purpose of COBRA is to allow employees who lose their jobs to continue their medical coverage at approximately the group rate, which is lower than'the rate for individual coverage. See Local 217, Hotel & Rest Emps. Union v. MHM, Inc., 976 F.2d 805, 809 (2d Cir.1992). The notification requirements of COBRA are clear. In the event of a covered employee’s termination, an employer must notify the administrator of the group health care plan within thirty days, 29 U.S.C. § 1166(a)(2); the administrator then has fourteen days to notify the qualified beneficiary of her right to continue coverage, id. § 1166(a)(4). MMC contends that its actions did not violate COBRA" }, { "docid": "14360443", "title": "", "text": "their favor. Since the COBRA cause of action does not affect plaintiff’s employer, there are no outstanding claims to discuss against Amtrak. II. COBRA Notice As mentioned above, plaintiff also complains that Travelers failed to send her information about her “COBRA” rights. COBRA was enacted in 1985 to provide employees who had been covered by an employment-related group health care plan with the opportunity to elect group rate continuation of coverage under the plan in the face of some “qualifying event”—job loss or hour reduction. 29 U.S.C. § 1161; Local 217, Hotel & Restaurant Employees Union v. MHM, Inc., 976 F.2d 805, 809 (2d Cir.1992) (discussing COBRA purpose and requirements). COBRA amended ERISA to require health care sponsors to provide such coverage and to notify their covered employees of election rights under the Act. 29 U.S.C. § 1161; see also id. § 1166 (notice requirements). The notification requirements of COBRA are clear. In the event of a covered employee’s termination, an employer must notify the administrator of the group health care plan within thirty days, id. § 1166(a)(2); the administrator then has fourteen days to notify the qualified beneficiary of her right to continue coverage, and this period may be longer if the plan is a multiemployer group health care plan and it so provides. Id. § 1166(a)(4). An employer or plan administrator who sends proper notice to the covered employee’s last known address is deemed to be in good faith compliance with COBRA’S notification requirements. Truesdale v. Pacific Holding Co./Hay Adams Div., 778 F.Supp. 77, 81-82 (D.D.C.1991); see also Conery v. Bath Associates, 803 F.Supp. 1388, 1398 (N.D.Ind.1992) (“Courts that have considered [how notice of eligibility must be communicated] have determined that a good faith attempt to comply with a reasonable interpretation of the provision is sufficient.”). A qualified COBRA beneficiary may elect continuation coverage within sixty days of the qualifying event or of notice of the qualifying event, whichever is later. Local 217, 976 F.2d at 809 (citing 29 U.S.C. § 1162(3)); Communications Workers of America v. NYNEX Corp., 898 F.2d 887, 888-889 (2d Cir.1990) (discussing COBRA); see" }, { "docid": "9935437", "title": "", "text": "that DPH, or anyone else, gave the required detailed notice to Hickman until 199 days after Hickman’s employment ended, making the notice 155 days late. DPH makes several arguments that it complied with the COBRA detailed notice requirement, but none are persuasive. First, DPH contends that the notice given to Hickman when she began employment was sufficient to inform her of her COBRA rights after she ceased employment. This argument is without legal support and is rejected based on the authorities cited above. DPH next argues that it attempted in “good faith” to comply with the COBRA notice provisions in that it mentioned in its termination letter that Hickman would be eligible for COBRA and stated therein that she “will be sent notification directly from InfiniSource ([DPH’s] COBRA outsource company).” This explanation was patently insufficient for the detailed notice required under applicable federal regulations. Accordingly, Hickman has conclusively established that DPH failed to timely send her the detailed post-termination COBRA notice, and Hickman is entitled to judgment in her favor on this issue. 2. COBRA Penalties Plaintiff Hickman seeks recovery of a monetary penalty of $110 per day from Defendant DPH for its failure to act in good faith by timely providing her with the required second notice of her COBRA rights. DPH opposes such relief and has filed a cross motion for summary judgment contending, first, that there is no evidence that it acted in bad faith and, second, its conduct was not the cause of prejudice to Hickman. The Court has discretion to impose a penalty for COBRA notice viola tions. See 29 U.S.C. § 1132(c)(1); Abraham v. Exxon Corp., 85 F.3d 1126, 1132 (5th Cir.1996); Paris v. Profit Sharing Plan for Employees of Howard B. Wolf, Inc., 637 F.2d 357, 362 (5th Cir.1981). ERISA (of which COBRA is a part) provides for a penalty of up to $110 per day for failure to meet COBRA notice requirements. The penalty provision serves as an incentive to plan administrators to meet requests for information in a timely fashion. Davis v. Featherstone, 97 F.3d 734 (4th Cir.1996). “In exercising its" }, { "docid": "6932700", "title": "", "text": "of the qualifying event involved in this case, “any qualified beneficiary with respect to such event” of such beneficiary’s rights under the COBRA amendments. 42 U.S.C. § 300bb-6(1) to (4). The notification required from the plan administrator must be given to the beneficiary within 14 days of the date that the administrator was notified of the qualifying event. 42 U.S.C. § 300bb-6. According to an October 1985 COBRA Congressional Conference Committee report, the conferees intended that the Secretary of Labor would issue regulations defining adequate notice, and the Secretary of Health and Human Services would issue conforming regulations. H.R.Rep. No. 453, 99th Cong., 1st Sess. 563. While it appears that such regulations have not been issued, the conferees noted that, pending their promulgation, “employers are required to operate in good faith compliance with a reasonable interpretation” of the substantive rules and notice requirements. Id. The committee went on to point out that they “intend that notice by mail to the qualified beneficiary’s last known address is to be adequate; however, mere posting is not to be adequate.” Id. While COBRA added essentially identical provisions for continuation of coverage under ERISA and the PHSA, the COBRA amendments to ERISA and the PHSA are dissimilar, in one fundamental way; while PHSA’s Section 300bb-7 provides only that an aggrieved individual may bring “an action for appropriate equitable relief,” plaintiffs attempting to recover for a violation of COBRA’s ERISA amendments may probably seek the broader relief available under the ERISA framework. C. Our Disposition Although Williams now concedes that ERISA does not govern the administration of the county’s health benefits plan, he continues to argue that ERISA Section 1104, which details certain fiduciary obligations, should apply in the absence of any specific description of the remedies available to the PHSA plaintiff under PHSA Section 300bb-7. See 29 U.S.C. § 1104. It is clear, however, that under 29 U.S.C. § 1003(b)(1), none of the ERISA provisions applies to a government employee benefits plan. We therefore agree with the district court’s rejection of Williams’ ERISA arguments. We conclude, however, that the district court erred when it" }, { "docid": "15014272", "title": "", "text": "continuing coverage to a beneficiary. See 29 U.S.C. § 1132(c)(1) (penalties of up to $100 per day from the date of the failure to give notice). Under COBRA law, a plan sponsor or administrator need not ensure that a beneficiary and her dependents actually receive the required notice. Rather, “[a]n employer or plan administrator who sends proper notice by first class mail to the covered employee’s last known address is deemed to be in good faith compliance.” See Truesdale v. Pac. Holding Co./Hay Adams Div., 778 F.Supp. 77, 81 (D.D.C.1991); see also Degruise v. Sprint Corp., 279 F.3d 333, 336 (5th Cir.2002) (good faith compliance does not mean “that employers are required to ensure that plan participants actually receive notice. Rather it merely obligates employers to use means ‘reasonably calculated’ to reach plan participants.”); Liles v. N.Y. City Dep’t of Educ., 516 F.Supp.2d 297, 317 (S.D.N.Y.2007) (“It is not Defendants’ obligation to track down Plaintiff in order to assure that he receives the COBRA forms that were sent to him.”); cf. Legille v. Dann, 544 F.2d 1, 4-5 (D.C.Cir.1976) (“Proof that mail matter is properly addressed, stamped and deposited in an appropriate receptacle has long been accepted as evidence of delivery to the addressee.”). Therefore, whether Robinson-Reeder actually received the COBRA notice is not the real issue here. The parties’ essential disagreement instead is whether ACE provided the correct address to its plan administrator, which mailed the COBRA notice to RobinsonReeder. Robinson-Reeder contends that ACE provided its plan administrator the incorrect address. See Pl.’s Mot. for Summ. J. on COBRA Claim [Docket Entry 56], at 3, 5. According to her, the address ACE provided — -and therefore the address to which the notice was mailed — omitted Robinson-Reeder’s apartment number, although it is uncontested that the address was correct in all other respects. See id. For its part, ACE responds that “ACE and its plan administrator satisfied COBRA’S mailing requirements by sending the continuing coverage notice to the exact address Ms. Robinson-Reeder herself provided.” Def.’s Opp’n to Pl.’s Mot. for Failure to Provide COBRA Notice Penalties (“Def.’s COBRA Opp’n”) [Docket" }, { "docid": "15014275", "title": "", "text": "section entitled ‘Name of Association’ through ‘Section 5.’ ”); id. at ¶ 7 (“I made no changes to the substantive information provided by Ms. Robinson-Reeder on the Enrollment Application.”). Therefore, ACE provided to its plan administrator the address Robinson-Reeder herself provided. And the administrator mailed the COBRA notice to that address. This is sufficient to satisfy ACE’s obligation under COBRA. See Truesdale, 778 F.Supp. at 81. Although the address may have been incomplete, Robinson-Reeder is not entitled to “benefit from her own error.” Id. Not one to give up, Robinson-Reeder argues that ACE elided her apartment number from her address after she completed the form. See Docket Entry 56 at 3 (“Notice the big gap in space after Drive ‘something is missing’ #421 was ‘white out’ by the defendant....” (errors in original)). Accordingly, she states that even though she properly filled out the form, ACE subsequently took action to preclude her from receiving the COBRA notice. This argument is unpersuasive. The Court required ACE to submit, and has now reviewed in camera, Robinson-Reed-er’s original health insurance enrollment application. The form bears no markings or other indications that an apartment number or anything else was covered up or otherwise removed from the employee information section. Moreover, Robinson-Reeder’s own filings indicate that she has provided her address as it appears on her health insurance enrollment form. In two Charges of Discrimination filed with the D.C. Office of Human Rights, she listed her building address without any additional detail. See Pl.’s Response to Def.’s Summ. J. Mot. [Docket Entry 91], Exhibit 2. Robinson-Reeder has offered nothing more than unsupported conclusions to support her allegations that ACE did not comply with COBRA in good faith. Such “evidence,” however, is insufficient to create a genuine issue of material fact on summary judgment. Therefore, summary judgment is appropriate for ACE on RobinsonReeder’s COBRA notice claim. CONCLUSION For the foregoing reasons, summary judgment is appropriate for ACE on both Robinson-Reeder’s retaliation claim and her COBRA notice claim. A separate order has been issued on this date. All other pending motions will be denied as moot. MEMORANDUM OPINION" }, { "docid": "9707168", "title": "", "text": "to the Town of Hammonton. Appellant’s App: at 26. We, along with other courts, have required employers to operate in “good faith” compliance with a reasonable interpretation of the notification provisions of COBRA. See Williams v. New Castle County, 970 F.2d 1260, 1265 (3d Cir.1992); see also, e.g., Degruise v. Sprint Corp., 279 F.3d 333, 336 (5th Cir.2002) (“employers are required to operate in good faith compliance with a reasonable interpretation of what adequate notice entails”) (internal quotations omitted); Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1383-84 (10th Cir.1997) (same). While COBRA notice givers are thus not held to literal compliance with the statute, we agree with the District Court that Thomas received improper notice of her COBRA rights because Hammonton failed to “properly detail her right to have up to 60 days to elect to continue her coverage and another 45 days from then to make payment.” District Court Op. at 20. Hammonton required Thomas to elect coverage and pay her premium “as soon as possible.” This was in direct conflict with COBRA. Nevertheless, as the District Court correctly noted, the PHSA provides only for “appropriate equitable relief’ to redress such COBRA violations. See 42 U.S.C. § 300bb-7. Thomas has not suggested any appropriate equitable relief and, indeed, has not directed us to anything in the record tending to show that she was harmed in any way by Hammonton’s failure to provide a proper notice. Thomas cites to Phillips v. Riverside, Inc., 796 F.Supp. 403 (E.D.Ark.1992), where a Dis- triet Court allowed for statutory fines and attorney’s fees because of improper COBRA notice. However, Phillips involved a private employer, and fines and attorney’s fees were authorized under the specific provisions of ERISA, 29 U.S.C. § 1132(c) and (g). As we have indicated, they are not available under the PHSA. Accordingly, we will affirm the District Court’s grant of summary judgment to Appellees on Thomas’s COBRA claim. IV. The State Claims Thomas asserts three claims under state law. First, she alleges that her termination violated both New Jersey’s Law Against Discrimination (“LAD”), N.J. Stat. Ann. § 10:5 — 12(d)," }, { "docid": "5681702", "title": "", "text": "held that a good faith attempt to comply with a reasonable interpretation of the statute is sufficient.” Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1383 (10th Cir.1997) (quotation omitted); accord McDowell v. Krawchison, 125 F.3d 954, 958 (6th Cir.1997). We agree with the district court that sufficient oral notice satisfies the notice requirement. The Chesnuts next argue that Geraldine did not receive legally sufficient oral notice. The statute does not specify the content of the notice that a qualified beneficiary must receive after a qualifying event has occurred. Neither the Department of Labor nor the Internal Revenue Service — the two agencies charged with interpreting and enforcing ERISA — -has issued regulations addressing the issue. In Lincoln Gen. Hosp. v. Blue Cross/Blue Shield, 963 F.2d 1136, 1140 (8th Cir.1992), we held that a plan administrator satisfied its notice obligation by providing information that “adequately informed [the qualified beneficiary] of the coverage she was entitled to receive and the money that she owed in order to maintain this coverage.” Similarly, in McDowell v. Krawchison, the Sixth Circuit stated that “the notice given must be sufficient to allow the qualified beneficiary to make an informed decision whether to elect coverage.” 125 F.3d at 958. We agree that these general standards are appropriate. The definition of qualified beneficiary varies depending upon the qualifying event. See § 1167(3). It may include both employees and their spouses and dependent children, who may have differing needs for information. See Meadows by Meadows v. Cagle’s, Inc., 954 F.2d 686, 692 (11th Cir.1992). Therefore, the standard for determining whether a § 1166(a)(4) notice was sufficient should not be defined with any greater particularity. As the district court recognized, Montgomery bore the burden of proving that he gave Geraldine sufficient oral notice. Stanton v. Larry Fowler Trucking, Inc., 52 F.3d 723, 727-29 (8th Cir.1995). The court credited agent Kyser’s testimony as to the advice he gave Geraldine— that she could elect up to eighteen months of continuation coverage, that such coverage was considerably more expensive than an individual policy providing comparable coverage, but that she might be denied" }, { "docid": "11641695", "title": "", "text": "202 (1986)). III. MMC is Not Entitled to Summary Judgment on Plaintiffs’ COBRA Claim Defendant MMC seeks summary judgment on Plaintiffs’ COBRA claim. Specifically, Plaintiffs contend that MMC failed to provide them with notice of their COBRA rights, in violation of 29 U.S.C. § 1166(a)(4)(A), because the notice was incorrectly addressed to “CornwallonHuds” instead of “Cornwall on Hudson” and, consequently, was never received by Plaintiffs. The purpose of COBRA is to allow employees who lose their jobs to continue their medical coverage at approximately the group rate, which is lower than'the rate for individual coverage. See Local 217, Hotel & Rest Emps. Union v. MHM, Inc., 976 F.2d 805, 809 (2d Cir.1992). The notification requirements of COBRA are clear. In the event of a covered employee’s termination, an employer must notify the administrator of the group health care plan within thirty days, 29 U.S.C. § 1166(a)(2); the administrator then has fourteen days to notify the qualified beneficiary of her right to continue coverage, id. § 1166(a)(4). MMC contends that its actions did not violate COBRA because it made a “good faith” effort to notify the plan beneficiary. In setting forth that argument, MMC relies on case law stating that “COBRA does not require actual receipt of notification by the plan participant; to the contrary, only a good faith attempt to notify is required.” Ramos v. SEIU Local 74 Welfare Fund, No. 01 Civ. 2700(SAS), 2002 WL 519731, at *5 (S.D.N.Y. Apr. 5, 2002) (citations omitted). This “good faith” standard obligates employers to use means “reasonably calculated” to reach plan participants. See Phillips v. Saratoga Harness Racing, Inc., 233 F.Supp.2d 361, 365 (N.D.N.Y.2002) (citations omitted). Moreover, an employer or plan administrator who “sends proper notice to the covered employee’s last know[n] address is deemed to be in good faith compliance with COBRA’S notification requirements.” Chesney v. Valley Stream Union Free Sch. Dist. No. 24, No. 05 Civ. 5106(DRH) (ETB), 2009 WL 936602, at *4 (E.D.N.Y. Mar. 31, 2009) (internal quotation marks and citation omitted). MMC contends that it fully complied with its obligations under COBRA by providing the Yangas family’s last" }, { "docid": "6326740", "title": "", "text": "the plaintiff could have afforded COBRA coverage. As a matter of fact, that argument was rejected by the Tenth Circuit in Smith v. Rogers Galvanizing Co., 128 F.3d 1380 (10th Cir.1997). The circuit court stated that “[i]t is entirely conceivable that, faced with the choice of paying the premiums or going without medical insurance altogether, plaintiffs could have borrowed money, sold assets, or found some other way to pay premiums.” Id. at 1385. The court was clearly concerned with whether the plaintiffs were provided an opportunity to elect coverage based upon having been fully informed of their COBRA rights and refused to engage in speculation as to whether “... plaintiffs would have declined continuation coverage even if they had been fully informed of their rights....” Id. As well, the Sixth Circuit has declared that “providing appropriate notice is a key requirement under COBRA.” McDowell v. Krawchison, 125 F.3d 954, 957 (6th Cir.1997). Notice is necessary “to allow the qualified beneficiary to make an informed decision whether to elect coverage.” Id. at 958. Furthermore, the Third Circuit declared in an analogous case involving ERISA’s reporting and disclosure requirements that a plaintiff does not need to demonstrate harm in a civil enforcement action. See Gillis v. Hoechst Celanese Corp. et al., 4 F.3d 1137, 1148 (3d Cir.1993). The Third Circuit based its decision upon the Supreme Court’s statement that “‘Congress’ purpose in enacting the ERISA disclosure provisions [was to] ensure] that the individual participant knows exactly where he stands with respect to the plan.”’ Id. (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 118, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (internal quotations omitted)). In turn, this Court finds that Chenoweth does not need to demonstrate harm in bringing this civil enforcement action under COBRA. The purpose behind the COBRA notice provisions is to ensure that qualified beneficiaries like Chenoweth are fully informed of their rights and have an opportunity to elect continued coverage if they so choose. See Mansfield v. Chicago Park Dist. Group Plan, 997 F.Supp. 1053, 1057(N.D.Ill.1998) (“Congress not only wanted employees to have the option" }, { "docid": "9707167", "title": "", "text": "§ 1132(a)(3) (ERISA); 42 U.S.C. § 300bb-7 (PHSA). However, unlike the PHSA, ERISA specifically provides for fines and attorney’s fees. See 29 U.S.C. § 1132(c) and (g). Section 300bb-6(4) of the PHSA requires a plan administrator to provide a beneficiary notice of his or her COBRA rights upon the happening of a qualifying event. 42 U.S.C. § 300bb-6(4). Termination of employment is a qualifying event. Id. § 300bb-3(2). COBRA provides that a terminated employee shall have 60 days to elect continuation coverage and that a plan may not require a premium to be paid sooner than 45 days after the day on which a beneficiary elects such coverage. See 42 U.S.C. §§ 300bb-5(a) and 300bb-2(3). The notice provided to Thomas on June 29, 2000 stated, [B]e advised your health coverage will be terminated effective 7/1/00. I have enclosed for your convenience a COBRA form. If you are interested in continuing your health benefits through COBRA, please return this form to my office as soon as possible together with the monthly payment of $480.82 made payable to the Town of Hammonton. Appellant’s App: at 26. We, along with other courts, have required employers to operate in “good faith” compliance with a reasonable interpretation of the notification provisions of COBRA. See Williams v. New Castle County, 970 F.2d 1260, 1265 (3d Cir.1992); see also, e.g., Degruise v. Sprint Corp., 279 F.3d 333, 336 (5th Cir.2002) (“employers are required to operate in good faith compliance with a reasonable interpretation of what adequate notice entails”) (internal quotations omitted); Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1383-84 (10th Cir.1997) (same). While COBRA notice givers are thus not held to literal compliance with the statute, we agree with the District Court that Thomas received improper notice of her COBRA rights because Hammonton failed to “properly detail her right to have up to 60 days to elect to continue her coverage and another 45 days from then to make payment.” District Court Op. at 20. Hammonton required Thomas to elect coverage and pay her premium “as soon as possible.” This was in direct conflict with COBRA." } ]

[ { "docid": "8158612", "title": "", "text": "before the guidelines. Fonner depicts this as a forbidden punishment in the teeth of the earlier acquittal, but it is not. The judge’s task in sentencing starts from an appreciation of the offense and offender. A defendant, convicted of making threats, who has killed before poses a problem in sentencing different from a milquetoast who utters threats out of frustration. To take account of the killing is not to “sentence” the defendant for a crime (murder) he did not commit, but to employ rational criteria to prescribe the sentence for the crime (mailing threatening communications) of which he stands convicted. Although Fonner believes that United States v. Perez, 858 F.2d 1272, 1277-78 (7th Cir.1988), and United States v. Plisek, 657 F.2d 920, 926-28 (7th Cir.1981), preclude reliance on the facts behind an acquittal, neither case purported to overrule Haygood, Cardi, or Ray. Both Perez and Plisek remarked that because the judge had not relied on the facts of a charge that ended in acquittal, there was no constitutional problem. Neither case entailed, as ours does, express invocation of such facts. We hold, as Haygood, Cardi, and Ray did before us, that different burdens of proof allow a sentencing judge to enhance the penalty for a crime of which the defendant has been convicted after considering relevant conduct that did not support a verdict of guilt in an earlier trial. 2. The district judge thought that criminal history category III does not adequately reflect Fonner’s background in part because eight of his convictions were omitted from the criminal history score. These are the omitted convictions: (1) in 1964 (when he was 17) Fonner pleaded guilty to a curfew violation and was fined $10; (2) in 1966 Fonner pleaded guilty to illegal possession of liquor by a minor (fined $25); (3) four months later Fonner pleaded guilty to another liquor offense and to using fireworks, illegal in New Jersey (90 days suspended plus $200 fine); (4) in 1972 Fonner pleaded guilty to disorderly conduct (fined $25); (5) in 1976 Fonner pleaded guilty to battery and theft of less than $150 (50 days" } ]

[ { "docid": "23001614", "title": "", "text": "offenses for which Hudspeth has been convicted. The Presentence Report reveals that as a juvenile in 1975, Hudspeth was adjudicated delinquent on two counts of burglary, one count of theft and one count of using an intoxicant. In 1979 as an adult, Hudspeth pled guilty to one count of theft and was sentenced to 60 days in jail and 30 months probation. In 1980, while on probation from the 1979 conviction, he was charged with and pled guilty to one count of burglary and was sentenced to four years of incarceration. In 1982, Hudspeth pled guilty to one count of trespassing and one count of resisting arrest. He was fined $250. Later in 1982, he was charged with and pled guilly to another count of resisting a peace officer and was sentenced to 30 days in jail. In 1983, Hudspeth pled guilty to the three burglaries of the strip mall and was sentenced to four years of confinement. Finally, in 1986, he was sentenced to two years of incarceration after pleading guilty to two counts of unlawful use of a firearm by a felon. It is quite evident that Hudspeth is precisely the type of career criminal at whom the ACCA is directed. Nonetheless, the mandatory fifteen-year minimum sentence applies only if Hud-speth's three burglaries in 1983 are determined to have been “committed on occasions different from one another” because, other than his 1980 burglary conviction, his other prior offense was an adjudication of juvenile delinquency, which does not count under the ACCA unless it involved a violent felony. See 18 U.S.C. § 924(e)(2)(C). . The three burglaries on March 27, 1983, occurred at three separate addresses: Farmers Insurance Company was at 1810 Stevenson Drive, Melo Creme Doughnut was located at 1814 Stevenson Drive, and Homestyle Cleaners was at 1816 Stevenson Drive. Presumably each business owner paid separate rent and taxes and filed separate insurance claims for the damage Hud-speth caused. See Tisdale, 921 F.2d at 1099 (\"[t]he fact each incident occurred inside one enclosed structure [a mall] does not alter our conclusion that the crimes were committed at different" }, { "docid": "20806968", "title": "", "text": "SIRICA, Chief Judge. MEMORANDUM This matter is before the Court on remand from the United States Court of Appeals for the District of Columbia for the purpose of clarifying the reasons given at the original sentencing proceeding for choosing to sentence the defendant Ward under the applicable penalty provision rather than under the Federal Youth Corrections Act. The defendant, Reuben T. Ward, entered a plea of guilty in this Court to a count charging robbery following a three-week trial with a co-defendant on charges of felony-murder, second-degree murder, armed robbery and robbery which ended in a hung jury. Although he insisted he was innocent, the defendant pleaded guilty to the robbery charge to avoid the risk of another trial for murder, under the authority of North Carolina v. Alford. At the sentencing hearing held on July 16, 1971, the Court made the following statement: Defendant Ward is now 21 years of age. As a juvenile, complaints for drunk and robbery were lodged against him. As an adult he was placed on probation for attempted procuring, and in fact he was on probation at the time of the present offense which occurred in February of 1970. Although he has had several arrests, the only convictions I have in the probation report: in December 1967 for being drunk he was placed on probation for an indeterminate period of time. December 1969, for robbery, he was committed to the custody of the Department of Public Welfare for an indeterminate period of time. As an adult, in July 1969, for attempted procuring, execution of one year sentence was suspended and he was placed on probation for two years. Probation is to expire on 9/10/71. Then on 9/10/69, I believe, for disorderly conduct he was fined $18.00. Now the victim of the robbery in the instant offense was killed under circumstances surrounding the offense which were therefore of a very serious nature. Defendant Ward has apparently been on drugs for sometime. He is not eligible under NARA because the offense was a crime of violence. His choice of companions and activities has been such that" }, { "docid": "23001613", "title": "", "text": "United States v. Gallman, 907 F.2d 639, 643 (7th Cir.1990), cert. denied, 499 U.S. 908, 111 S.Ct. 1110, 113 L.Ed.2d 219 (1991) and United States v. Redding, 16 F.3d 298, 302 (8th Cir.1994), under § 924(e)(1), the government must establish that a defendant has three prior violent felony convictions. A certified record of conviction or a presentence investigation report, if not challenged, will normally satisfy this showing. Redding, 16 F.3d at 302; United States v. Ruo, 943 F.2d 1274, 1276 (11th Cir.1991). The burden then shifts to the defendant to establish by a preponderance of the evidence that the prior convictions occurred on a single \"occasion,” and thus cannot be the basis for sentence enhancement under § 924(e)(1). See Redding, 16 F.3d at 302 (defendant bears the burden of proving that prior convictions cannot be used for sentence enhancement). .While we realize that the issue in this appeal is whether the three burglaries occurred on one “occasion” or more than one \"occasion,” it is interesting to note that these three burglaries are not the only offenses for which Hudspeth has been convicted. The Presentence Report reveals that as a juvenile in 1975, Hudspeth was adjudicated delinquent on two counts of burglary, one count of theft and one count of using an intoxicant. In 1979 as an adult, Hudspeth pled guilty to one count of theft and was sentenced to 60 days in jail and 30 months probation. In 1980, while on probation from the 1979 conviction, he was charged with and pled guilty to one count of burglary and was sentenced to four years of incarceration. In 1982, Hudspeth pled guilty to one count of trespassing and one count of resisting arrest. He was fined $250. Later in 1982, he was charged with and pled guilly to another count of resisting a peace officer and was sentenced to 30 days in jail. In 1983, Hudspeth pled guilty to the three burglaries of the strip mall and was sentenced to four years of confinement. Finally, in 1986, he was sentenced to two years of incarceration after pleading guilty to two counts" }, { "docid": "11486939", "title": "", "text": "at least one year of probation or thirty days of imprisonment. . Cf. United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (recognizing that resisting arrest is excludable, but that a conviction for battery and resisting arrest required a criminal history point because none of the exempted offenses was similar to the \"battery aspect\" of the conviction); United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990) (finding no error in district court’s consideration of state conviction for assault and criminal damage to property when computing criminal history), cert. denied, 500 U.S. 906, 111 S.Ct. 1687, 114 L.Ed.2d 81 (1991). . A disposition of court supervision is a sentencing alternative employed in the discretion of the trial court. People v. Hall, 251 Ill.App.3d 935, 191 Ill.Dec. 161, 163, 623 N.E.2d 751, 753 (1993). When a plea of guilty is entered, the court may order supervision sifter it considers the circumstances of the offense and the “history, character and condition of the offender,” and after it determines that: \"(1) the offender is not likely to commit further crimes; (2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and (3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.\" 730 ILCS 5/5-6-l(c). It is notable that these factors mirror those found in Hardeman. . Consistent with the goal of “avoiding unwarranted sentencing disparities among defendants with similar records,\" 28 U.S.C. § 991(b)(1)(B), we do not \"plumb the nuances,\" Unger, 915 F.2d at 962, of the Illinois definition of \"disorderly conduct.\" The parameters of a listed offense are \"a question of federal law, not state law.” Id. at 963 & n. 5 (noting agreement with the approach articulated by Judge Wallace, concurring in Martinez, that \"the question is one of federal law, pure and simple”). . Two federal appellate decisions have considered whether a criminal history point should be given for the crime of criminal damage to property. Each affirmed the district court’s assessment of a point for the" }, { "docid": "23315351", "title": "", "text": "petition was dismissed without adjudication of delinquency after Berry, then 16, admitted the charge and performed community service. Berry’s PSR also stated that he had been arrested twice as an adult-once for marijuana possession and once for armed robbery. According to the PSR, the marijuana charge had been “discharged due to lack of prosecution,” and the robbery charge had been “nol prossed.” The PSR contained no information about the facts underlying those charges. Critically, as we shall explain, the PSR noted that the “nol prossed” robbery charge “forms the basis of the instant offense.” The PSR prepared for Mack calculated a Guideline offense level for the robbery of 20 and a criminal history category of I for Count One. The resulting Guideline range was 33 to 41 months. Mack was also subject to a mandatory consecutive seven-year sentence of imprisonment on Count Two. Mack had no prior criminal convictions, but the PSR listed four “other arrests.” According to the PSR, Mack was arrested once for retail theft and once for possessing a weapon on school property when he was 17. The retail theft had been “discharged for lack of prosecution,” and the weapons charge had been resolved when Mack entered a Consent Decree without an adjudication of delinquency. As an adult, Mack had been charged with knowing possession of a controlled substance, but the charge had been “withdrawn by the District Attorney.” Like Berry, his PSR listed a 2004 arrest for armed robbery that was “nol prossed.” Except for the weapons charge arising from the possession of a box cutter, the PSR contained no information about the underlying facts or circumstances of any arrests. Surprisingly, although no one present at sentencing apparently realized it, close examination of the PSRs reveals that the nol prossed robbery charges against Berry and Mack arose from the same robbery for which the defendants were being sentenced. The local authorities did not pursue those charges after Berry and Mack were indicted by the federal grand jury and they therefore moved to nol prosse the robbery charges in favor of the federal charges which are the" }, { "docid": "20466700", "title": "", "text": "is the offense that landed Eubanks on probation. The theft of the firearm and the revocation of probation are thus a single conviction-—indeed, they are listed as such on Eubanks’ juvenile docket sheet. See U.S.S.G. § 4A1.2(k), comment (n.11); United States v. Palmer, 946 F.2d 97, 99 (9th Cir.1991) (holding the “sentence on the underlying conviction and on the revocation of probation is considered a ‘single conviction’ ”). Because Eubanks received a sentence of more than sixty days on the revocation, he was properly assessed a two-level enhancement in his criminal history score. The armed robbery—the offense that led to the revocation of his probation—was a separate, unrelated offense. The district court correctly computed this offense separate from the revocation offense for the purpose of criminal history points, despite the fact the offenses were all adjudicated under the same juvenile case number. Indeed, “[p]rior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2). Merely because Eubanks was sentenced for these offenses on the same day does make them one charge for criminal history purposes. See e.g., Unit ed States v. Statham, 581 F.3d 548, 554-55 (7th Cir.2009) (district court properly assigned separate criminal history points for multiple offenses sentenced on the same day, with two of the sentences running concurrent, “because each offense was separated by an intervening arrest and the events and victims involved in the three cases were completely different.”). So Eu-banks was correctly given an additional two-point increase in his criminal history score for the armed robbery. Eubanks contends, however, that the five-year statute of limitations under U.S.S.G. § 4A1.2(d)(2)(B) precludes an enhancement for the theft of a firearm charge. But U.S.S.G. § 4A1.2(d)(2)(A) is the applicable section here because Eu-banks’ juvenile sentence exceeded sixty days, and under that provision the clock starts when a defendant is released from confinement. See U.S.S.G. § 4A1.2(d)(2)(A). Because Eubanks was released from confinement in June 2004 for the theft of firearm and armed robbery charges, and the instant offenses occurred in July 2007, the offenses fall within" }, { "docid": "12398850", "title": "", "text": "The second juvenile adjudication, auto burglary and attempted misdemeanor theft, was referred on February 20, 1990, when Gilkey was 14. On August 27, 1990, a sentence of probation with restitution was imposed for each of these first two offenses. The probation for these first two adjudications, however, was revoked on July 29, 1992, and Gilkey was ordered into custody. On November 3, 1992, when Gilkey was 17, he was referred to the juvenile court for his third juvenile adjudication, for carrying a concealed weapon. A sentence of continued custody was imposed for this third adjudication. Gilkey remained in custody until April 8,1993. Gilkey concedes that his confinement constituted a “juvenile sentence to confinement” for purposes of § 4A1.2(d)(2)(A). See Appellant Br. at 11; see also United States v. Birch, 39 F.3d 1089, 1095 (10th Cir.1994) (holding defendant’s placement into Kansas juvenile custody qualified as “confinement” within meaning of U.S.S.G. § 4A1.2(d)(2)(A)). He claims, however, that only two points ought to have been added on the theory that his confinement from July 29, 1992 through April 8, 1993 constituted only one “sentence to confinement.” Merely because Gilkey served one continuous period of confinement, however, does not mean that the sentences of confinement pronounced in each of the adjudications do not meet the requirements of U.S.S.G. § 4A1.2(d)(2)(A). Two points may therefore be added to the criminal history calculation for each. Gilkey has not presented any sound reason to con- elude that the orders of confinement given for the three juvenile offenses identified in the Pre-Sentence Report should not be deemed to separately trigger § 4A1.2(d)(2)(A), with two-point additions for each. Gilkey does argue that the first offense should not have counted because the PreSentence Report does not specifically note on the first offense that the defendant was “adjudicated delinquent,” but does so note on the second and third offenses. Despite the absence of clear language identifying that the defendant was “adjudicated delinquent,” the Report clearly identifies the dates of sentencing and describes the dispositions on this first offense. A sentence was imposed on August 27, 1990 with a disposition of “Probation" }, { "docid": "23555103", "title": "", "text": "United States v. Williams, 901 F.2d 1394, 1396-97 (7th Cir.1990)). See also 18 U.S.C. § 3742(e)(3). When a defendant’s criminal history category is, as here, Category VI (the highest level), the amount of the departure must be related to the structure of the Guidelines. Scott, 914 F.2d at 963. So we turn to the sentencing hearing. The judge grounded the departure on two provisions of the Sentencing Guidelines, sections 4A1.3 and 5K2.14. Specifically, he stated that Meeks’s criminal history category did not adequately reflect the seriousness of his past criminal conduct nor the likelihood that he would commit other crimes, and that Meeks is a threat to the public welfare and safety. Sen.Tr. at 49. Meeks complains here that the district court improperly relied on consolidated sentences to justify departure. But as we said in Williams, these are appropriate grounds to justify departure. 901 F.2d at 1397-97. See also United States Sentencing Guidelines (“U.S.S.G.”) §§ 4A1.2 Application Note 3, 4A1.3 & 5K2.14. As to section 4A1.3, after chronicling Meeks’s criminal history, the judge found that Meeks demonstrated by a “consistent pattern of conduct over the years that [he] cannot live for any period of time in society without committing serious crimes.” Sen.Tr. at 49. That history commenced in 1955 when Meeks, then 17 years old, was adjudicated a delinquent for burglary. His adult convictions make an impressive list: 1957: misdemeanor stealing; 1958: second degree assault with intent to rob; 1959: burglary; 1962: first degree robbery; 1966: burglary; 1968: exhibiting a deadly weapon; 1971: burglary; 1972: two consolidated convictions for assault with intent to kill with malice; 1975: burglary; 1979: two convictions, one for theft, one for burglary; 1983: criminal damage to property; 1986: two convictions, one for trespass to land, and one for retail theft. Sen.Tr. at 45-47. The judge then commented that this is a total of fifteen convictions, resulting in Meeks’s confinement for 20 out of the past 32 years. Id. at 48. As to section 5K2.14, the judge stated that Meeks “fit the classic profile of a career recidivist who will continue to pose a serious threat" }, { "docid": "22465797", "title": "", "text": "first adult offense. App. 34. Langford does, however, have a history of adjudications as a juvenile. In the Presentence Investigation Report (“PSR”), the probation officer concluded that consideration of three of Langford’s prior adjudications of juvenile delinquency resulted in five criminal history points. The two adjudications not at issue on appeal were as follows: 1. In 2001, at age fourteen, Langford was adjudicated delinquent for criminal conspiracy, possession, and possession with intent to deliver crack cocaine and ordered committed to a Community Intensive Supervision Program (and subsequently a detention center for violating the terms of his program). PSR ¶ 31, App. 126. 2. In 2003, at age sixteen, he was adjudicated delinquent for robbery, criminal conspiracy, and fleeing the police. PSR ¶ 32. While the charges were pending for his second offense, Langford was released with electronic home monitoring. He failed to appear for arraignment and a warrant was issued. On September 29, 2003, he was apprehended by the police as he attempted to steal a vehicle. PSR ¶ 33. That same day, a petition for his second adjudication was filed in juvenile court charging the defendant with the previous robbery charge. PSR ¶ 32. As to the robbery charge, he was adjudicated delinquent on October 28, 2003 and committed to a youth development center. PSR ¶ 32. On October 28, 2003, he was also adjudicated delinquent as to criminal attempt (auto theft), possession of instruments of crime, resisting arrest, criminal mischief, and disorderly conduct. The court discontinued that third adjudication and, according to the PSR, ordered the defendant to provide a DNA sample. PSR ¶ 33. This third adjudication (the “auto theft adjudication”) is at issue on appeal. Because the 2005 bank robbery occurred less than two years after Langford’s release from juvenile commitment to a youth development center, the probation officer added an additional criminal history two points, establishing a criminal history category of IV. PSR ¶ 33. At sentencing, Langford’s counsel argued that the appropriate criminal history category was III, rather than IV, because the last adjudication did not result in a sentence and, accordingly, no point" }, { "docid": "23235167", "title": "", "text": "five years of the defendant’s commencement of the instant offense not covered in (A). U.S.S.G. § 4A1.2(d)(2) (emphasis added). Regardless of how his juvenile offenses of assault and manslaughter are categorized under Ohio law, they are considered sentences under federal law, which governs interpretation of the Sentencing Guidelines. See United States v. Kirby, 893 F.2d 867, 868 (6th Cir.1990) (“Federal law, not [Ohio] law, controls sentencing disposition in the event of convictions for federal offenses.”). Because one of them resulted in commitment of more than sixty days, the district court properly added two points for that one and one point for the other. Two panels of this circuit have held the same for juvenile offenses under Michigan and Kentucky law, respectively. See Hanley, 906 F.2d at 1120; Kirby, 893 F.2d at 868. Hanley held that juvenile commitments were properly determined to be “confinement” for purposes of § 4A1.2(d)(2)(A). See Hanley, 906 F.2d at 1120. In Kirby, the defendant “had been adjudicated delinquent by a Kentucky juvenile court on the basis of conduct that would constitute burglary, theft, and other related crimes.... ” Kirby, 893 F.2d at 868. There is no relevant distinction between Kentucky or Michigan law and Ohio law on this point. The district court did not err in adding three points to Giles’s criminal history score. Giles fares no better with his argument that these offenses are “juvenile status offenses” under § 4A1.2(c)(2). Black’s Law Dictionary defines a “status crime” as “[a] class of crime which consists not in proscribed action or inaction, but in the accused’s having a certain personal condition or being a person of a specified character. An example of a status crime is vagrancy.” Indeed, the list of offenses which do not count toward a criminal history assessment under § 4A1.2(c)(2) are hitchhiking, juvenile status offenses and truancy, loitering, minor traffic infractions, public intoxication, and vagrancy. Manslaughter and assault are by no stretch similar in character to the offenses listed above. Second, Giles argues that he received ineffective assistance of counsel because his lawyer withdrew most of the objections to the presentence report (“PSR”)" }, { "docid": "23315349", "title": "", "text": "McKEE, Circuit Judge. Terrell Berry and Shawn Mack pled guilty to an indictment charging them both with one count of robbery affecting interstate commerce, and one count of carrying and using a firearm in furtherance of a crime of violence. They now appeal their sentences arguing, inter alia, that the district court denied them due process of law by relying upon unsupported speculation in determining their sentences. For the reasons that follow, we agree. We will therefore remand for resentencing. I. Factual Background On October 5, 2004, Berry and Mack were apprehended by police in Upper Darby, Pennsylvania, in connection with the armed robbery of an area restaurant. A subsequent search of the car they were riding in disclosed a handgun as well as cash that had been stolen from the restaurant during the robbery. Following their arrest, Berry and Mack were charged by local authorities. However, their prosecution was transferred to federal authorities, and they were subsequently indicted by a federal grand jury. Following indictment, they both pled guilty to one count of robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951(a) (“Count One”), and one count of carrying and using a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (“Count Two”). The Presentence Investigation Report (“PSR”) that was prepared for Berry calculated an offense level of 19 and a criminal history category of I for Count One. That resulted in a Sentencing Guidelines range of 30 to 37 months imprisonment. However, a mandatory consecutive sentence of seven years imprisonment applied on Count Two. The PSR noted that Berry, who was 22 at the time of this offense, had no prior adult convictions, but he did have four prior arrests. He was assigned one criminal history point for an arrest for a theft offense when he was 17 that resulted in an adjudication of delinquency. Since this was his only criminal history point, he remained in criminal history category I. According to the PSR, a second juvenile petition had been filed against Berry for unauthorized use of an automobile. That" }, { "docid": "121224", "title": "", "text": "possession of a weapon. The probation officer could not count these convictions because they were for offenses committed when Samuels was under eighteen years old, and because, according to the probation officer, none of them resulted in a sentence meeting the criteria set forth in section 4A1.2(d) of the Guidelines, which are summarized below at pages 8-9. See id. § 4A1.2(d), (e)(3), (4). The presentence report, however, urged the court to consider a departure from the prescribed range under section 4A1.3(a) on the ground that category IV did not adequately reflect the seriousness of Samuels’ past criminal conduct because of the five uncounted prior convictions. See id. § 4A1.3(a). At sentencing, the district court reviewed Samuels’ entire criminal record, beginning with a robbery conviction at age fourteen, and characterized it as “atrocious.” Transcript of Sentencing Hearing, Mar. 26, 1990, at 6. The court was “amazed” that Samuels had received a sentence of only eighty-five days for the sexual abuse conviction, id., and noted that Samuels’ criminal record was “an extremely long one,” and that he was “very fortunate” to have received no sentence longer than six months, id. at 10. Considering Samuels’ “extensive record, and the fact that ... both as a juvenile and as an adult” the courts had shown him “every leniency,” the court stated: I must conclude that the criminal history [category] in this case does not accurately reflect the sentence that should be imposed ..., and, in fact, in looking at the sentence that can be imposed in this case, as I understand it, the probation office was unable to count several of the convictions listed against [Samuels], and therefore under section 4A1.3 of the Sentencing Guidelines, I propose to depart from the guideline range and to make a departure upward to the next criminal history category. Id. at 10. Under criminal history category V, the prescribed imprisonment range for Samuels’ offense level is ninety-two to 115 months. See U.S.S.G. Ch. 5, Pt. A, at 5.2. The district court sentenced him to 115 months in prison and four years of supervised release. II. Discussion A. Suppression" }, { "docid": "16741317", "title": "", "text": "is available only for a sentence of probation, the conditions of supervised release authorized by statute are the same as those for a sentence of probation. When the court finds that the defendant violated a condition of supervised release, it may continue the defendant on supervised release, with or without extending the term or modifying the conditions, or revoke supervised release and impose a term of imprisonment. The periods of imprisonment authorized by statute for a violation of the conditions of supervised release generally are more limited, however, than those available for a violation of the conditions of probation. 18 U.S.C. § 3583(e)(3). . Goad dropped out of school in the tenth grade, but earned his General Education Degree (G.E.D.) while in confinement following an adjudication of juvenile delinquency. Goad also enrolled in a business law class at a technical college but withdrew before completing his coursework. . Goad was no stranger to the criminal justice system. His presentence report listed fifteen juvenile arrests, as well as an adjudication of juve nile delinquency for committing nine separate burglaries. Goad was convicted as an adult for burglary, vehicle theft, driving under the influence, and retail theft. In addition, at the time of his arrest for bank fraud in 1990, he faced pending charges for forgery, unlawful use of a driver’s license, driving under a revoked license, interference with fire-fighting equipment and resisting arrest. . See Berkowitz, 927 F.2d at 1384 (the defendant’s educational background and prior experience in court as reflected in the information available to the trial judge weighed towards a finding of waiver without a specific inquiry from the bench). . Goad cites his attorney’s decision to file an Anders no merit brief as evidence of their problematic relationship. This argument misses the mark. An attorney has an ethical duty to refrain from making frivolous arguments to the court. United States v. Gomez, 24 F.3d 924, 926 (7th Cir.1994). An attorney may fulfill that obligation by filing an Anders no merit brief. Moreover, Stokes filed this brief after the district court denied Goad’s motion for substitution of counsel. In" }, { "docid": "23315350", "title": "", "text": "affecting interstate commerce, in violation of 18 U.S.C. § 1951(a) (“Count One”), and one count of carrying and using a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (“Count Two”). The Presentence Investigation Report (“PSR”) that was prepared for Berry calculated an offense level of 19 and a criminal history category of I for Count One. That resulted in a Sentencing Guidelines range of 30 to 37 months imprisonment. However, a mandatory consecutive sentence of seven years imprisonment applied on Count Two. The PSR noted that Berry, who was 22 at the time of this offense, had no prior adult convictions, but he did have four prior arrests. He was assigned one criminal history point for an arrest for a theft offense when he was 17 that resulted in an adjudication of delinquency. Since this was his only criminal history point, he remained in criminal history category I. According to the PSR, a second juvenile petition had been filed against Berry for unauthorized use of an automobile. That petition was dismissed without adjudication of delinquency after Berry, then 16, admitted the charge and performed community service. Berry’s PSR also stated that he had been arrested twice as an adult-once for marijuana possession and once for armed robbery. According to the PSR, the marijuana charge had been “discharged due to lack of prosecution,” and the robbery charge had been “nol prossed.” The PSR contained no information about the facts underlying those charges. Critically, as we shall explain, the PSR noted that the “nol prossed” robbery charge “forms the basis of the instant offense.” The PSR prepared for Mack calculated a Guideline offense level for the robbery of 20 and a criminal history category of I for Count One. The resulting Guideline range was 33 to 41 months. Mack was also subject to a mandatory consecutive seven-year sentence of imprisonment on Count Two. Mack had no prior criminal convictions, but the PSR listed four “other arrests.” According to the PSR, Mack was arrested once for retail theft and once for possessing a weapon on school" }, { "docid": "23001659", "title": "", "text": "719, 726, 42 L.Ed.2d 751 (1975) (Blackmun, J., dissenting). . Mr. Hudspeth was sentenced on November 26, 1991. The court determined that the total offense level was 31; the criminal history category was V; the range of imprisonment was 180-210 months; the range of supervised release was 3-5 years; and the range of fíne was $15,000 to $150,000. It then sentenced him to a term of imprisonment of 180 months. . In the unpublished order, this court also stated that it could not determine whether Mr. Hud-speth’s adjudication of delinquency in 1975, a juvenile burglary conviction, was a \"violent felony” that would count for the purposes of § 924(e). At the hearing on remand, the government acknowledged that it would offer no evidence with respect to that adjudication. R.59 at 9-10. The government further commented that there was \"no contest” as to the second item listed in the information, the adult conviction for burglary in May 1979. Id. . The charge of burglary to which Mr. Hudspeth pled guilty is a class 2 felony in Illinois. 720 ILCS 5/19-1. Because that state statute has been found to be broader than the generic definition of burglary found in Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990), the sentencing court is required to review the charging paper and jury instructions to determine whether all the elements of generic burglary are present. Id.; United States v. Howell, 37 F.3d 1197, 1206-07 (7th Cir.1994); United States v. Simpson, 974 F.2d 845, 849 (7th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1326, 122 L.Ed.2d 711 (1993). Nothing in the record indicates that the district court examined those papers from state court. However, the defendant did not raise this issue before the district court, nor does he raise it on appeal. It is not critical to our decision for two reasons. First, it may be that \"trial counsel obtained the charging papers, recognized that they satisfy Taylor, and saw no point in insisting that the record be padded with evidence adverse to his client.\" United States v." }, { "docid": "23315381", "title": "", "text": "we conclude that the district court’s reliance on arrest records at sentencing was a plain error which violated defendants’ right to be sentenced based on reliable information. See Johnson v. United States, 520 U.S. at 467, 117 S.Ct. 1544. We will therefore vacate the sentences that were imposed and remand for resen-tencing. . The PSR notes that the weapon charge resulted from Mack’s possession of a box cutter. A psychologist’s report submitted to the district court stated that Mack claimed he possessed the box cutter because his after-school job involved \"cut[ting] up boxes for the incinerator. ...” . It is somewhat unclear whether the prosecutor was referring to the local arrest for the instant offense, to Berry's juvenile arrest and conviction for theft, or both. The judge, however, apparently believed the prosecutor was referring to the adult arrest for the instant offense. Otherwise, he would have no reason to refer to Berry's avoiding prosecution because of \"breakdowns in the court system”— since Berry was adjudicated delinquent based upon his juvenile theft. . Furthermore, as we have noted, the PSR did explain why the prior armed robbery charges were nol prossed. A dismissal of local charges in favor of federal prosecution can hardly be characterized as a ''breakdown” in the state court system. . Though neither party has addressed this statement regarding the “correct” sentence for an armed robbery, we are concerned by it. On remand, the district court should decide the appropriate sentence based upon the individual facts and circumstances of this case and these defendants, rather than any personal notion of the appropriate sentence for armed robbery.' See United States v. Thompson, 483 F.2d 527, 529 (3d Cir. 1973) (“A fixed view as to sentencing is inconsistent with the discretion vested in the trial judge that he may fulfill his mandate to tailor the sentence imposed to the circumstances surrounding each individual defendant and frustrates the operation of those rules set up to effect such a result.”), quoted in United States v. Torres, 251 F.3d 138, 146 (3d Cir.2001). . We have explained that post-Booker, properly calculating the Guideline" }, { "docid": "14096918", "title": "", "text": "no longer in custody, however, a challenge to a criminal conviction (or, in this case, a declaration of juvenile delinquency, which is its equivalent for a child) is not moot when the defendant continues to face adverse consequences stemming from its adjudication. Thus, in determining if Morgan’s petition is moot, we must examine “whether sufficient collateral consequences of the conviction persist to give the petitioner ‘a substantial stake in the judgment of conviction which survives the satisfaction of the sentences imposed on him.’ ” Puchner v. Kruziki, 111 F.3d 541, 543 (7th Cir.1997) (quoting Carafas v. La Vallee, 391 U.S. 234, 237, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)). This standard applies equally to juvenile adjudications. D.S.A., 942 F.2d at 1145-50. Applying these principles, we think Morgan’s petition is not moot. Examining Illinois law, Morgan has a stake in the outcome of this litigation. For example, one aggravating factor under Illinois’ Aggravated Unlawful Use of a Weapon statute is whether a defendant has previously been adjudicated a delinquent for an act that if committed by an adult would be a felony. 720 ILCS 5/24 — 1.6(a)(3)(d); People v. Marin, 342 Ill.App.3d 716, 277 Ill.Dec. 285, 795 N.E.2d 953 (2003). A first-time conviction under this statute is a Class 4 felony. 720 ILCS 5/24-1.6(d). In contrast, without a juvenile adjudication as an aggravating factor, the comparable crime would be Unlawful Use of a Weapon, a Class A misdemeanor. 720 ILCS 5/24-1. The difference in potential sentences is significant. If treated as a felony, the possible sentence is 3 years imprisonment. 730 ILCS 5/5 — 8—1(7). In contrast, if considered a misdemeanor, the maximum sentence would be less than one year. 730 ILCS 5/5 — 8—3(1). Because Morgan’s delinquency adjudication will, like an adult criminal conviction, increase his potential punishment in the future, we agree with the parties that his petition is not moot. The second pre-merits matter is the State’s breach of our rules in prosecuting its appeal. In large part, the outcome of this appeal depends on our assessment of how the case was resolved by the Appellate Court of" }, { "docid": "11040589", "title": "", "text": "time later and committed other acts (R. 73). It also raises potential questions, which this court need not address, of whether the defendant was improperly convicted and sentenced under Illinois law of multiple charges from a single act. See People v. Dixon, 91 Ill.2d 346, 351-52, 63 Ill.Dec. 442, 445-46, 438 N.E.2d 180, 183-84 (1982); People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1 (1974); but see People v. Green, 62 Ill.2d 146, 340 N.E.2d 9 (1975), cert. denied, 426 U.S. 925, 96 S.Ct. 2635, 49 L.Ed.2d 379 (1976). . The transcript of the change of plea hearing is 94 pages long. Defendant is quoted on 10 pages, all within the first 19 pages. He spoke only 39 words; the vocabulary consisted of 12 different words, only one of which had two syllables, that word being \"Honor.” . The judge, in his sentencing remarks but not at the time of the hearing on the change of plea, noted that Stewart as a juvenile had been adjudged delinquent once for robbery and twice for armed robbery, and as an adult he had been convicted twice for burglary, twice for unlawful use of a weapon, and once for theft (R. 670-71). The many differences between experiences in the juvenile court and the adult court may arguably be viewed as more confusing than elucidating in terms of one’s understanding of procedural and substantive rights. This court notes that jury trials are not constitutionally required in juvenile proceedings, McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S.Ct. 1976, 1986, 29 L.Ed.2d 647 (1971), and no such right is provided under Illinois law. See In re Fucini, 44 Ill.2d 305, 255 N.E.2d 380 (1970). . For views of judges, prosecutors, defense attorneys and others on the handling of death penalty cases, see The Death Penalty: Personal Perspectives, 22 Loy.U.Chi.L.J. 1, 14-63 (1990)." }, { "docid": "17805343", "title": "", "text": "In 1979, Wallace was convicted of theft and fined $170, which produced one criminal history point. U.S.S.G. § 4Al.l(c). In 1980, he was convicted of theft and of criminal damage to property, and was sentenced to two concurrent one-year terms of probation, which again resulted in one criminal history point. Id. In the same year, he was convicted of burglary and sentenced to two years of probation. When his probation was subsequently revoked, however, he served eighteen months in prison. He therefore received three criminal history points for that sentence. U.S.S.G. §§ 4Al.l(a) & 4A1.2(k). In 1984, Wallace was convicted of possessing a controlled substance, for which he was fined $100, and of obstructing justice, for which he received two years of probation. He received one criminal history point for each of those sentences. U.S.S.G. § 4Al.l(c). The total of seven criminal history points placed Wallace in Criminal History Category IV, which, in conjunction with his offense level of 32, produced a sentencing range of 168-210 months. The district judge sentenced Wallace at the very bottom of the range to 168 months. Raising an objection that he did not make before the district court, Wallace now argues that the court erred in considering the sentences resulting from the 1979 and 1980 theft convictions because they had been imposed more than ten years prior to his initiation of the instant offense. Because Wallace waived this argument by failing to raise it before the district court, we review for plain error only. United States v. Rosalez-Cortez, 19 F.3d 1210, 1220 (7th Cir.1994); United States v. Rivero, 993 F.2d 620, 623 (7th Cir.1993). Guidelines section 4A1.2(e) provides: (1)Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period. (2) Any other prior sentence that was imposed within ten years of the defendant’s commencement of the instant offense is" }, { "docid": "20466699", "title": "", "text": "was charged with theft of a firearm and placed on probation. Then in May 2002, he was charged with two counts of armed robbery and one count of aggravated robbery. For these offenses, his probation for the theft of a firearm offense was revoked, and Eubanks was sentenced to the Illinois Department of Corrections on October 24, 2003. He was paroled on June 29, 2004. All offenses were adjudicated under the same case number. The district court assessed two points for the theft of the firearm and two points for the armed robbery offenses because the incidents were separate offenses under the guidelines. Eubanks argues that the district court double counted by giving him four points—two for the theft of firearms offense and two more for the armed robbery. He believes that he should have only been given a total of two points because the armed robbery is what led to his probation being revoked for the theft of firearms offense. Not so. The underlying conviction is the theft of the firearm in 2001. This is the offense that landed Eubanks on probation. The theft of the firearm and the revocation of probation are thus a single conviction-—indeed, they are listed as such on Eubanks’ juvenile docket sheet. See U.S.S.G. § 4A1.2(k), comment (n.11); United States v. Palmer, 946 F.2d 97, 99 (9th Cir.1991) (holding the “sentence on the underlying conviction and on the revocation of probation is considered a ‘single conviction’ ”). Because Eubanks received a sentence of more than sixty days on the revocation, he was properly assessed a two-level enhancement in his criminal history score. The armed robbery—the offense that led to the revocation of his probation—was a separate, unrelated offense. The district court correctly computed this offense separate from the revocation offense for the purpose of criminal history points, despite the fact the offenses were all adjudicated under the same juvenile case number. Indeed, “[p]rior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2). Merely because Eubanks was sentenced for these offenses on" } ]

[ { "docid": "14085179", "title": "", "text": "F.2d 676 (advance payment of rent); Main & McKinney Bldg. Co. of Houston, Tex. v. Commissioner of Internal Revenue, 5 Cir., 113 F.2d 81, certiorari denied 311 U.S. 688, 61 S.Ct. 66, 85 L.Ed. 444 (advance payment of rent); Baton Coal Co. v. Commissioner of Internal Revenue, 3 Cir., 51 F.2d 469, certiorari denied 284 U.S. 674, 52 S.Ct. 129, 76 L.Ed. 570 (advance payment of rent); Duffy v. Central Railroad Company of New Jersey, 268 U.S. 55, 45 S.Ct. 429, 69 L.Ed. 846 (additions to leased property) ; Commissioner of Internal Revenue v. Boylston Market Ass’n, 1 Cir., 131 F.2d 966, 144 A.L.R. 528 (advance payment of insurance premiums) ; and Robertson v. Steele’s Mills, 4 Cir., 172 F.2d 817, certiorari denied 338 U.S. 848, 70 S.Ct. 86, 94 L.Ed. 519 (capital expenditure). . In the Ernst case, as in this case, the delivery dates were uncertain. In Ernst the quantity was all a certain sum of money would buy. Here the quantity is specified but the ultimate cost is uncertain. . The deficiency assessment was $38,995.-04. Counsel for the Commissioner compute the overall tax benefit to the taxpayers, if their position is sustained, to be slightly over $87,000. . 321 U.S. 285-286, 64 S.Ct. 598. . Cf. Prentice-Hall, Federal Taxes, Vol. 2, § 11,918, Prepaid Expenses, slip sheet 1/1/59." } ]

[ { "docid": "8782755", "title": "", "text": "1978); Resnik v. Commissioner, 66 T.C. 74 (1976), affd. 555 F.2d 634 (7th Cir. 1977); Anderson v. Commissioner, 568 F.2d 386 (5th Cir. 1978), affg. a Memorandum Opinion of this Court. Section 446(b) is concerned with accounting methods clearly reflecting income and is applicable to prepaid feed expenses as well as prepaid interest. If the method of handling a substantial prepaid item results in a material distortion of income, the Commissioner has been given the authority to change the taxpayer’s method of accounting for that item, whether the item is a prepaid interest expense or prepaid feed expense. Clement v. United States, 217 Ct. Cl. , 580 F.2d 422 (1978), cert. denied 440 U.S. (1979). Nor is the Commissioner unable to deal with a material distortion of income under section 446(b) because of provisions in the regulations exempting farmers from having to use the inventory method of accounting. Sec. 1.471-6(a), Income Tax Regs. The Court of Claims recently considered this specific question in Clement v. United States, supra, and held at page : we see the Commissioner’s refusal to allow deduction of the whole prepayment in 1968 — having found that to result in a distortion of income — not as imposing the inventory system, but rather as consistent with the cash system as the latter method is defined by the regulations and utilized for income tax purposes. Treas. Reg. §1.461-l(a)(l)(1957) — expressly prescribing the general rule for the taxable year of deduction for all taxpayers using the cash receipts and disbursement method — declares that “If an expenditure results in the creation of an asset having a useful life which extends substantially beyond the close of the taxable year, such an expenditure may not be deductible, or may be deductible only in part, for the taxable year in which made.” Under that specific provision the feed-deduction must be taken, where there would otherwise be a material distortion of income, in the year or years that that kind of asset is consumed or utilized. Such treatment does not mean that an inventory system (applicable to “product costs”) is adopted pro" }, { "docid": "10742967", "title": "", "text": "1974 constituted a material distortion of income and issued notices of deficiency totalling $206,-539. The Van Radens filed timely petitions in the Tax Court seeking a redetermination of the deficiencies. The Tax Court found for the Van Radens, Van Raden v. Commissioner, 71 T.C. 1083 (1979), and the Commissioner appeals. II. THE STATUTORY FRAMEWORK I.R.C. § 446(a) provides that “[t]axable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.” Treas.Reg. § 1.471-6(a) provides that “[a] farmer may make his return upon an inventory method instead of the cash receipts and disbursements method. It is optional with the farmer which of those methods is used. ...” Western Trio-VR used the cash method of accounting. A farmer is generally entitled to treat the cost of feed as a deductible expense. Treas.Reg. § 1.162-12(a). The timing of deductions is normally governed by the taxpayer’s method of accounting. I.R.C. § 461. Treas.Reg. § 1.461-l(a)(l) provides that a cash basis taxpayer should generally take allowable deductions in the year in which the expense is paid. However, where “an expenditure results in the creation of an asset having a useful life which extends substantially beyond the close of the taxable year,” the taxpayer must prorate the expense deduction over the useful life of the asset. Id. I.R.C. § 446(b) allows the Commissioner to override the taxpayer’s choice of accounting method where the taxpayer’s method does not clearly reflect income: If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income,, the computation of taxable income shall be made under such method as, in the opinion of the Secretary, does clearly reflect income. Section 446(b) grants the Commissioner broad discretion to require the use of a different accounting method. Under the authority of I.R.C. § 461, which governs the timing of deductions, the Commissioner has issued Rev.Rul. 75-152, 1975-1 Cum.Bull. 144, which, indicates the proper taxable year in which a cattle farmer using the cash method of accounting may deduct the" }, { "docid": "10742972", "title": "", "text": "Tax Court also found that distortion of income should be analyzed on the partnership level. Therefore, in assessing whether the deduction of feed expense constituted a material distortion of income, the Tax Court did not consider the relationship between the timing or effect of the Van Radens’ investment in the limited partnership and the large capital gain they individually recognized in 1972. The Commissioner does not challenge this part of the Tax Court’s opinion. IV. ANALYSIS . The Commissioner asserts that there is a material distortion of income resulting from the partnership’s use of the cash method of accounting and that he has the authority under section 446(b) to change that method of accounting. The change he seeks is the application of Treas.Reg. § 1.461-l(a)(l) and specifically that portion which requires proration of the deduction if “the expenditure results in the creation of an asset having a useful life which extends substantially beyond the close, of the taxable year. .. . ” The Commissioner contends that application of Treas.Reg. § 1.461- 1(a)(1) requires proration here. We disagree with that contention. We need not reach the questions of the Commissioner’s power under section 446(b) or the existence of a material distortion of income. For, under the rule followed in this circuit, application of Treas.Reg. § 1.461-l(a)(l) to the expenditure involved leads to the result reached by the taxpayer and the Tax Court, and not the result sought by the Commissioner. Thus, the Tax Court’s decision must be affirmed. In Zaninovich v. Commissioner, 616 F.2d 429 (9th Cir. 1980), we considered the application of Treas.Reg. 1.461-l(a)(l) to prepaid rent expense. We held that under that regulation a taxpayer who paid his rent for the period from December 1, 1973 through November 30, 1974 on December 20, 1973 was entitled to deduct the entire rental payment on his 1973 tax return. In Zaninovich we adopted a “one-year rule” to distinguish between currently deductible expenses and capital expenditures having a useful life “substantially beyond” the close of the taxable year. Id. at 432. The “one-year rule” allows a full deduction in the year of" }, { "docid": "19019612", "title": "", "text": "a year prior to its consumption. The Commissioner was held not to have abused his discretion in requiring a cash-basis taxpayer to use the accrual method to account for a prepaid interest deduction made on December 30. Noting “the ever-present potential for arbitrariness and evasiveness which is inherent in the cash-basis method of income tax accounting,” the court held the Commissioner entitled to consider whether the prepayment of interest or of any other item resulted in a distortion of income. 533 F.2d at 769. The Commissioner might order a change in accounting for only one year or only one item out of several, as necessary to clearly reflect income, the overall accounting method to remain unchanged. Additional authorities are Commissioner v. Boylston Market Ass’n, 131 F.2d 966 (1st Cir. 1942) and Lovejoy v. Commissioner, 18 B.T.A. 1179, 1182 (1930), cases in which cash-basis taxpayers were required to prorate, over the period involved, expenditures for insurance premiums and loan commissions. Cf. Treas.Reg. § 1.461-l(a)(l) (1957) (if expenditure by a cash-basis taxpayer “results in the creation of an asset having a useful life which extends substantially beyond the close of the taxable year, such an expenditure may not be deductible, or may be deductible only in part, for the taxable year in which made.”). There is thus no doubt as to the Commissioner’s discretion to require a change in an overall accounting method which does not clearly reflect income or, more specifically, to order a change in the treatment of a particular item where he finds that the accounting for it causes a material distortion of income. The next question is whether there is reason to hesitate to apply this rule in the case at bar. Revenue Ruling 75-152, supra, lists some factors bearing on whether material distortion is present: “the customary business practice of the taxpayer in conducting his livestock operations, the amount of expenditures in relation to past purchases, the time of year in which the expenditure was made, and the materiality of the expenditure in relation to the taxpayer’s income for that year.” These factors serve as a guide" }, { "docid": "14092122", "title": "", "text": "rental similar to that involved herein); University Properties, Inc. v. Commissioner, 45 T.C. 416 (1966), affd. 378 F.2d 83 (9th Cir. 1967) (prepaid rent). Keller v. Commissioner, supra; Jolley v. Commissioner, T.C. Memo. 1984-70. Clement v. United States, supra; Van Raden v. Commissioner, supra; Frysinger v. Commissioner, supra. Sec. 162(a), in pertinent part, provides— SEC. 162(a). In General — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * * Sec. 446(a), sec. 461(a) and sec. 1.461-l(a)(l), Income Tax Regs., also provide general tax accounting rules which are applicable to the proper time deductions may be claimed and satisfaction with those rules may be in issue in connection with this third requirement. Sec. 446(a) provides— SEC. 446(a). General Rule — Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books. Sec. 461(a) provides— SEC. 461(a). General Rule — The amount of any deduction or credit allowed by this subtitle shall be taken for the taxable year which is the proper taxable year under the method of accounting used in computing taxable income. Sec. 1.461-l(a)(l), Income Tax Regs., in pertinent part, provides— Sec. 1.461-1. General rule for taxable year Qf deduction. (a) General rule — (1) Taxpayer using cash receipts and disbursement method. * * * If an expenditure results in the creation of an asset having a useful life which extends substantially beyond the close of the taxable year, such an expenditure may not be deductible, or may be deductible only in part, for the taxable year in which made. * * * We express no opinion herein as to this Court’s acceptance of the Ninth Circuit’s recent interpretation of the 1-year rule of the above regulation. See Zaninovich v. Commissioner, 616 F.2d 429 (1980), revg. 69 T.C. 605 (1978), and Commissioner v. Van Raden, 650 F.2d 1046, affg. on other grounds 71 T.C. 1083 (1979)." }, { "docid": "20107684", "title": "", "text": "prepaid feed aspect of the transaction on its own merit, and we must decide that issue on the evidence and not on the basis of suspicion. The uncontradicted evidence that the purchase was appropriate to the business of Queen (i.e., D & S) cannot be ignored. The evidence of the trend in the price of corn, which accounted for approximately 75 percent of the feed purchased by Queen, is inconclusive. Neither that data nor any other evidence impeaches Blackman’s claim that he and his associates used their best judgment on when to purchase feed. The businessman is allowed discretion to make business judgments. Van Raden v. Commissioner, 71 T.C. at 1101; Clement v. United States, 217 Ct. Cl. 495, 580 F.2d 422, 427 (1978). For these reasons, we decline to hold that the primary purpose of the prepayment was tax avoidance. Distortion of Income As a cash-basis taxpayer, Queen paid for the cattle feed and deducted the prepaid feed expense in that year in accordance with its method of accounting. Sec. 461; secs. 1.471-6(a) and 1.162-12(a), Income Tax Regs. Respondent contends that the prepayment resulted in a material distortion of income, relying upon section 446(b), which gives the Commissioner discretionary power to require a recomputation of income if the taxpayer’s method does not clearly reflect income. Respondent’s determination will generally not be overturned in the absence of evidence of abuse of discretion. Resnik v. Commissioner, 66 T.C. 74, 78 (1976), affd. 555 F.2d 634 (7th Cir. 1977); Sandor v. Commissioner, 62 T.C. 469, 477 (1974), affd. per curiam 536 F.2d 874 (9th Cir. 1976). The taxpayer bears a heavy burden to overcome a determination of the Commissioner in this area. Keller v. Commissioner, 79 T.C. at 38; Fort Howard Paper Co. v. Commissioner, 49 T.C. 275, 284 (1967), citing Commissioner v. Hansen, 360 U.S. 446 (1959), and cases subsequent to it. In Van Raden, we rejected the taxpayers’ argument that the discretionary power under section 446(b) is not available to the Commissioner when dealing with farmers who use the cash method of accounting. 71 T.C. at 1102-1103. Accord Clement v." }, { "docid": "16541035", "title": "", "text": "to account for a prepaid interest deduction made on December 30. Noting \"the ever-present potential for arbitrariness and evasiveness which is inherent in the cash-basis method of income tax accounting,” the court held the Commissioner entitled to consider whether the prepayment of interest or of any other item resulted in a distortion of income. 533 F.2d at 769. The Commissioner might order a change in accounting for only one year or only one item out of several, as necessary to clearly reflect income, the overall accounting method to remain unchanged. Additional authorities are Commissioner v. Boylston Market Ass’n, 131 F.2d 966 (1st Cir. 1942) and Lovejoy v. Commissioner, 18 B.T.A. 1179, 1182 (1930), cases in which cash-basis taxpayers were required to pro-rate, over the period involved, expenditures for insurance premiums and loan commissions. Cf. Treas. Reg. § 1.461-l(a)(l) (1957) (if expenditure by a cash-basis taxpayer \"results in the creation of an asset having a useful life which extends substantially beyond the close of the taxable year, such an expenditure may not be deductible, or may be deductible only in part, for the taxable year in which made.”). There is thus no doubt as to the Commissioner’s discretion to require a change in an overall accounting method which does not clearly reflect income or, more specifically, to order a change in the treatment of a particular item where he finds that the accounting for it causes a material distortion of income. The next question is whether there is reason to hesitate to apply this rule in the case at bar. Revenue Ruling 75-152, supra, lists some factors bearing on whether material distortion is present: \"the customary business practice of the taxpayer in conducting his livestock operations, the amount of expenditures in relation to past purchases, the time of year in which the expenditure was made, and the materiality of the expenditure in relation to the taxpayer’s income for that year.” These factors serve as a guide in examining the facts of the instant case for material distortion of the taxpayer’s income. The partnership’s deduction for feed taken in 1968 was $311,548," }, { "docid": "8782754", "title": "", "text": "the evidence clearly shows that he abused his discretion. Schram v. United States, 118 F.2d 541 (C.A. 6, 1941); Michael Drazen, 34 T.C. 1070 (1960). The taxpayer has a heavy burden of proof in establishing that the Commissioner abused his discretion. Fort Howard Paper Co., supra; Photo-Sonics, Inc., supra. Even if an accounting method may be in accord with generally accepted accounting principles, it may not clearly reflect income and, therefore, may not be binding upon the Commissioner. American Automobile Assn. v. United States, 367 U.S. 687 (1961); Fort Howard Paper Co., supra. [62 T.C. at 476-477.] In Sandor, we held that the Commissioner’s power to change a taxpayer’s method of accounting may be exercised with respect to a material item (i.e., prepaid interest, the item involved in Sandor), if this is necessary to clearly reflect income. Sandor has been followed consistently by this Court and other courts. Burck v. Commissioner, 63 T.C. 556 (1975), affd. 533 F.2d 768 (2d Cir. 1976); Cole v. Commissioner, 64 T.C. 1091 (1975), affd. 586 F.2d 747 (9th Cir. 1978); Resnik v. Commissioner, 66 T.C. 74 (1976), affd. 555 F.2d 634 (7th Cir. 1977); Anderson v. Commissioner, 568 F.2d 386 (5th Cir. 1978), affg. a Memorandum Opinion of this Court. Section 446(b) is concerned with accounting methods clearly reflecting income and is applicable to prepaid feed expenses as well as prepaid interest. If the method of handling a substantial prepaid item results in a material distortion of income, the Commissioner has been given the authority to change the taxpayer’s method of accounting for that item, whether the item is a prepaid interest expense or prepaid feed expense. Clement v. United States, 217 Ct. Cl. , 580 F.2d 422 (1978), cert. denied 440 U.S. (1979). Nor is the Commissioner unable to deal with a material distortion of income under section 446(b) because of provisions in the regulations exempting farmers from having to use the inventory method of accounting. Sec. 1.471-6(a), Income Tax Regs. The Court of Claims recently considered this specific question in Clement v. United States, supra, and held at page : we see" }, { "docid": "14092121", "title": "", "text": "separate return. Some of the cases refer to a three-part test of (1) deposit versus payment, (2) ordinary and necessary, and (3) clear reflection of income. See Clement v. United States, 217 Ct. Cl. 495, 503,580 F.2d 422, 426 (1978), cert. denied 440 U.S. 907 (1979); Frysinger v. Commissioner, T.C. Memo. 1980-89 (39 T.C.M. 1287, at 1290,49 P.H. Memo T.C. par. 80,089, at 80-465), affd. 645 F.2d 523,525 n. 2 (5th Cir. 1981). Other decisions refer to either a variant of the three-part test to a two-part test of (1) deposit versus payment, and (2) clear reflection of income. See Keller v. Commissioner, 79 T.C. 7, 28 (1982), affd. 725 F.2d 1173, 1177 (8th Cir. 1984); Van Raden v. Commissioner, 71 T.C. 1083, 1097 (1979), affd. on other grounds 650 F.2d 1046 (9th Cir. 1981). See Keller v. Commissioner, 79 T.C. 7, 48-50 (1982) (with respect to management fees); Bonaire Development Co. v. Commissioner, 76 T.C. 789 (1981), affd. 679 F.2d 159 (9th Cir. 1982) (management fees); Williamson v. Commissioner, 37 T.C. 941 (1962) (delay rental similar to that involved herein); University Properties, Inc. v. Commissioner, 45 T.C. 416 (1966), affd. 378 F.2d 83 (9th Cir. 1967) (prepaid rent). Keller v. Commissioner, supra; Jolley v. Commissioner, T.C. Memo. 1984-70. Clement v. United States, supra; Van Raden v. Commissioner, supra; Frysinger v. Commissioner, supra. Sec. 162(a), in pertinent part, provides— SEC. 162(a). In General — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * * Sec. 446(a), sec. 461(a) and sec. 1.461-l(a)(l), Income Tax Regs., also provide general tax accounting rules which are applicable to the proper time deductions may be claimed and satisfaction with those rules may be in issue in connection with this third requirement. Sec. 446(a) provides— SEC. 446(a). General Rule — Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books. Sec. 461(a) provides— SEC. 461(a). General Rule — The amount of" }, { "docid": "20107685", "title": "", "text": "1.162-12(a), Income Tax Regs. Respondent contends that the prepayment resulted in a material distortion of income, relying upon section 446(b), which gives the Commissioner discretionary power to require a recomputation of income if the taxpayer’s method does not clearly reflect income. Respondent’s determination will generally not be overturned in the absence of evidence of abuse of discretion. Resnik v. Commissioner, 66 T.C. 74, 78 (1976), affd. 555 F.2d 634 (7th Cir. 1977); Sandor v. Commissioner, 62 T.C. 469, 477 (1974), affd. per curiam 536 F.2d 874 (9th Cir. 1976). The taxpayer bears a heavy burden to overcome a determination of the Commissioner in this area. Keller v. Commissioner, 79 T.C. at 38; Fort Howard Paper Co. v. Commissioner, 49 T.C. 275, 284 (1967), citing Commissioner v. Hansen, 360 U.S. 446 (1959), and cases subsequent to it. In Van Raden, we rejected the taxpayers’ argument that the discretionary power under section 446(b) is not available to the Commissioner when dealing with farmers who use the cash method of accounting. 71 T.C. at 1102-1103. Accord Clement v. United States, 217 Ct. Cl. 495, 580 F.2d 422, 427 (1978). See also Keller v. Commissioner, 79 T.C. 7 (1982), affd. 725 F.2d 1173 (8th Cir. 1984); Sandor v. Commissioner, supra. In Frysinger v. Commissioner, 645 F.2d 523, 526 (5th Cir. 1981), affg. a Memorandum Opinion of this Court, the Court of Appeals recognized the Commissioner’s broad powers under section 446(b), but noted his lack of success in using his discretionary authority to challenge prepaid farm deductions, \"principally because of the special treatment traditionally granted farmers under the tax regulations.” In affirming our decision for the taxpayer, the Court of Appeals stated: We emphasize that our holding is limited to the facts in this case. We do not hold the Commissioner can never exercise his discretion under section 446(b) to disallow a prepaid feed deduction by a farmer. Rather we hold that where the taxpayer is a farmer covered by the special provisions allowing farmers to take current deductions for feed expenses, where the prepayment is for a business purpose and not merely tax avoidance," }, { "docid": "20107686", "title": "", "text": "United States, 217 Ct. Cl. 495, 580 F.2d 422, 427 (1978). See also Keller v. Commissioner, 79 T.C. 7 (1982), affd. 725 F.2d 1173 (8th Cir. 1984); Sandor v. Commissioner, supra. In Frysinger v. Commissioner, 645 F.2d 523, 526 (5th Cir. 1981), affg. a Memorandum Opinion of this Court, the Court of Appeals recognized the Commissioner’s broad powers under section 446(b), but noted his lack of success in using his discretionary authority to challenge prepaid farm deductions, \"principally because of the special treatment traditionally granted farmers under the tax regulations.” In affirming our decision for the taxpayer, the Court of Appeals stated: We emphasize that our holding is limited to the facts in this case. We do not hold the Commissioner can never exercise his discretion under section 446(b) to disallow a prepaid feed deduction by a farmer. Rather we hold that where the taxpayer is a farmer covered by the special provisions allowing farmers to take current deductions for feed expenses, where the prepayment is for a business purpose and not merely tax avoidance, and where it is in line with normal business practice and not unreasonable, the Commissioner cannot use his discretionary authority to vitiate the benefits granted the taxpayer by his own regulations merely because the taxpayer’s method may otherwise result in a distortion of income. If \"passive farmers” are to be treated differently, the change must come from Congress, as it has under IRC sec. 464, which now requires certain investment farmers to defer feed expenditure deductions at least until the feed is used or consumed. [645 F.2d at 528.] Whether an accounting method materially distorts or clearly reflects income is a question of fact. Van Raden v. Commissioner, 71 T.C. at 1104; Resnik v. Commissioner, 555 F.2d at 636; Sandor v. Commissioner, 62 T.C. at 484. In support of his claim that the prepayment resulted in a material distortion of income, respondent notes that the prepayment was the sole expense of Queen, and Queen had no income. He claims that the distortion continued in 1972 because the installment sale allowed D & S to take" }, { "docid": "19019611", "title": "", "text": "income of $129,899 computed by the taxpayer on the cash basis was not substantially the same result as the $127,804 of income under the accrual system directed by the Commissioner. The taxpayer, said the court, “must demonstrate substantial identity of results between his method and the method selected by the Commissioner.” Id. at 356. In seeking to exercise his discretion in this case, the Commissioner does not reject completely the taxpayer’s choice of an accounting method. Concerned only with the timing of a particular deduction, the Commissioner would change the year of deduction from the year in which the feed was bought to the following year. It is settled that the Commissioner has discretionary authority to disallow a particular deduction on the ground that the timing of the payment distorts income. Burck v. Commissioner, 533 F.2d 768, 773 (2d Cir. 1976); Sandor v. Commissioner, 62 T.C. 469, 476-77 (1974), aff’d 536 F.2d 874 (9th Cir. 1976). Burck v. Commissioner involved a deduction of prepaid interest, a cost similar to the cost of feed bought in a year prior to its consumption. The Commissioner was held not to have abused his discretion in requiring a cash-basis taxpayer to use the accrual method to account for a prepaid interest deduction made on December 30. Noting “the ever-present potential for arbitrariness and evasiveness which is inherent in the cash-basis method of income tax accounting,” the court held the Commissioner entitled to consider whether the prepayment of interest or of any other item resulted in a distortion of income. 533 F.2d at 769. The Commissioner might order a change in accounting for only one year or only one item out of several, as necessary to clearly reflect income, the overall accounting method to remain unchanged. Additional authorities are Commissioner v. Boylston Market Ass’n, 131 F.2d 966 (1st Cir. 1942) and Lovejoy v. Commissioner, 18 B.T.A. 1179, 1182 (1930), cases in which cash-basis taxpayers were required to prorate, over the period involved, expenditures for insurance premiums and loan commissions. Cf. Treas.Reg. § 1.461-l(a)(l) (1957) (if expenditure by a cash-basis taxpayer “results in the creation of" }, { "docid": "3336592", "title": "", "text": "of accounting, unlike the cash basis method, aims to allocate to the taxable year expenses attributable to income realized in that year. For this reason, it was appropriate for the lessee in Bloedel’s Jewelry, supra, to prorate to the next year that portion of the rental payment which could be matched with income realized in the next year. Because the cash basis taxpayer is allowed to deduct items when paid, regardless of when related income is realized, there is no need for a prorated deduction here as a means of matching income and expenses. . While the “one-year rule” is strictly applied to allow a full deduction in the year of payment where an expenditure creates an asset having a useful life beyond the taxable year of twelve months or less, it is not applied in the same manner in the other direction. Where an expenditure creates an asset having a useful life beyond the taxable year of more than twelve months, the “one-year rule” has been used as a guidepost only, and not as a rigid rule requiring automatic capitalization of every expenditure which creates an asset having a useful life in excess of one year. See, e. g., Jack’s Cookie Co. v. United States, supra, 597 F.2d at 405; United States v. Wehrli, 400 F.2d 686, 689 (10th Cir. 1968). . Section 446 and Treas.Reg. 1.446-1 require a taxpayer to adopt a method of accounting that “clearly reflects income.” The Commissioner has broad discretion under § 446 to modify a taxpayer’s accounting method to avoid gross distortions and to insure a clear reflection of income. Cole v. Commissioner, 586 F.2d 747 (9th Cir. 1978), cert, denied, 441 U.S. 924, 99 S.Ct. 2034, 60 L.Ed.2d 398 (1979); Sandor v. Commissioner, 536 F.2d 874 (9th Cir. 1976). An action taken by the Commissioner under § 446 will be set aside by the courts only if there is a clear abuse of discretion. Cole v. Commissioner, supra. Because the Commissioner did not act pursuant to § 446 in this case, our review is not limited to a determination regarding abuse of" }, { "docid": "8782738", "title": "", "text": "affd. 496 F.2d 520 (10th Cir. 1974). Even in the instance of the accumulated earnings tax (a penalty tax) where an inquiry is made into the reasonable needs of the business, we have recognized as reasonable, accumulations to carry the business through perils of that business occasioned by the weather. The business of farming has long been recognized as hazardous due to the effects of weather. That condition and the seasonal nature of farming bring about the cyclical nature of feed prices upon which the success of Trio-YR greatly depended. Farmers have historically been accorded special treatment because of the nature of the business. In commenting upon the long-standing rule that a farmer may use the cash method of accounting, the Supreme Court stated in Catto v. United States, 384 U.S. 102, 116 (1966): “The sacrifice in accounting accuracy under the cash method represents an historical concession by the Secretary and the Commissioner to provide a unitary and expedient bookkeeping system for farmers and ranchers in need of a simplified accounting procedure.” After some discussion of section 207 of the Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1536, 26 U.S.C. sec. 464, the parties agree that it does not apply retroactively to the instant case and nothing in the legislative history demonstrates congressional intent applicable to the taxable years before us. Cf. Sandor v. Commissioner, 62 T.C. at 479. The Court of Claims recently held that prepaid feed expense resulted in a material distortion of income but disallowance of the deduction did not impose the requirements of keeping inventories on the taxpayer because of section 1.461-l(a)(l), Income Tax Regs. Clement v. United States, supra. Section 461 of the Code, under which the regulation was promulgated, provides that a deduction or credit shall be taken in the taxable year which is the proper taxable year under the taxpayer’s method of accounting. Because the partnership was on the cash receipts and disbursements method of accounting, the “proper taxable year” for claiming a deduction for feed purchased was 1972 when the partnership paid for the feed. This conclusion is supported" }, { "docid": "16541034", "title": "", "text": "directed by the Commissioner. The taxpayer, said the court, \"must demonstrate substantial identity of results between his method and the method selected by the Commissioner.” Id. at 356. In seeking to exercise his discretion in this case, the Commissioner does not reject completely the taxpayer’s choice of an accounting method. Concerned only with the timing of a particular deduction, the Commissioner would change the year of deduction from the year in which the feed was bought to the following year. It is settled that the Commissioner has discretionary authority to disallow a particular deduction on the ground that the timing of the payment distorts income. Burck v. Commissioner, 533 F.2d 768, 773 (2d Cir. 1976); Sandor v. Commissioner, 62 T.C. 469, 476-77 (1974), aff’d 536 F.2d 874 (9th Cir. 1976). Burck v. Commissioner involved a deduction of prepaid interest, a cost similar to the cost of feed bought in a year prior to its consumption. The Commissioner was held not to have abused his discretion in requiring a cash-basis taxpayer to use the accrual method to account for a prepaid interest deduction made on December 30. Noting \"the ever-present potential for arbitrariness and evasiveness which is inherent in the cash-basis method of income tax accounting,” the court held the Commissioner entitled to consider whether the prepayment of interest or of any other item resulted in a distortion of income. 533 F.2d at 769. The Commissioner might order a change in accounting for only one year or only one item out of several, as necessary to clearly reflect income, the overall accounting method to remain unchanged. Additional authorities are Commissioner v. Boylston Market Ass’n, 131 F.2d 966 (1st Cir. 1942) and Lovejoy v. Commissioner, 18 B.T.A. 1179, 1182 (1930), cases in which cash-basis taxpayers were required to pro-rate, over the period involved, expenditures for insurance premiums and loan commissions. Cf. Treas. Reg. § 1.461-l(a)(l) (1957) (if expenditure by a cash-basis taxpayer \"results in the creation of an asset having a useful life which extends substantially beyond the close of the taxable year, such an expenditure may not be deductible, or may" }, { "docid": "8782739", "title": "", "text": "of section 207 of the Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1536, 26 U.S.C. sec. 464, the parties agree that it does not apply retroactively to the instant case and nothing in the legislative history demonstrates congressional intent applicable to the taxable years before us. Cf. Sandor v. Commissioner, 62 T.C. at 479. The Court of Claims recently held that prepaid feed expense resulted in a material distortion of income but disallowance of the deduction did not impose the requirements of keeping inventories on the taxpayer because of section 1.461-l(a)(l), Income Tax Regs. Clement v. United States, supra. Section 461 of the Code, under which the regulation was promulgated, provides that a deduction or credit shall be taken in the taxable year which is the proper taxable year under the taxpayer’s method of accounting. Because the partnership was on the cash receipts and disbursements method of accounting, the “proper taxable year” for claiming a deduction for feed purchased was 1972 when the partnership paid for the feed. This conclusion is supported by section 1.162-12(a), Income Tax Regs., which provides in part “The purchase of feed and other costs connected with raising livestock may be treated as expense deductions insofar as such costs represent actual outlays.” Section 1.461-l(a)(l), Income Tax Regs., bears the following caveat upon which the Court of Claims bases its opinion: “If an expenditure results in the creation of an asset having a useful life which extends substantially beyond the close of the taxable year, such an expenditure may not be deductible, or may be deductible only in part, for the taxable year in which made.” The regulations then illustrate by the example of a lessee who makes capital improvements to a leasehold which should be amortized over the remaining period of the lease. Respondent relies upon cases in which certain costs were required to be prorated over more than one annual accounting period to urge here the application of section 1.461-l(a)(l), Income Tax Regs. Those cases involved prepaid insurance premiums, Commissioner v. Boylston Market Ass’n, 131 F.2d 966 (1st Cir. 1942); prepaid rent," }, { "docid": "17764912", "title": "", "text": "Commissioner, 62 T.C. 469 (1974), affd. 536 F.2d 874 (9th Cir. 1976), the taxpayer obtained a $100,000 loan payable on demand with interest payable at 1V% percent annually. If no earlier demand for repayment was made, the loan was due in 5 years. As provided in the loan agreement, the cash basis taxpayer prepaid in 1968, the year the loan was entered into, the total interest due over the entire 5-year term of the loan, and he deducted the entire prepaid interest in the first year. Exercising his authority to change methods of accounting to methods which clearly reflect income, respondent disallowed most of the claimed deduction (that portion relating to the term of the loan subsequent to the year of prepayment). The disallowed interest was required to be allocated to the taxable periods to which it related. We approved respondent’s actions in Sandor, and we reached similar results in Resnik v. Commissioner, 66 T.C. 74 (1976), affd. 555 F.2d 634 (7th Cir. 1977); Cole v. Commissioner, 64 T.C. 1091 (1975), affd. 586 F.2d 747 (9th Cir. 1978); Burck v. Commissioner, 63 T.C. 556 (1975), affd. 533 F.2d 768, 773 (2d Cir. 1976). See also Ferrill v. Commissioner, 684 F.2d 261 (3d Cir. 1982), affg. a Memorandum Opinion of this Court; Anderson v. Commissioner, 568 F.2d 386 (5th Cir. 1978), affg. a Memorandum Opinion of this Court. In Sandor v. Commissioner, supra, we explained further that under section 461, deductions are to be “taken for the taxable year which is the proper taxable year under the method of accounting used in computing taxable income.” We pointed out that an earlier version of section 461, section 200(d) of the Revenue Act of 1924, 43 Stat. 253, 254, had provided— (d) * * * The deductions and credits provided for in this title shall be taken for the taxable year in which “paid or accrued” or “paid or incurred”, dependent upon the method of accounting upon the basis of which the net income is computed under section 212 or 232, unless in order to clearly reflect the income the deductions or credits" }, { "docid": "10742973", "title": "", "text": "We disagree with that contention. We need not reach the questions of the Commissioner’s power under section 446(b) or the existence of a material distortion of income. For, under the rule followed in this circuit, application of Treas.Reg. § 1.461-l(a)(l) to the expenditure involved leads to the result reached by the taxpayer and the Tax Court, and not the result sought by the Commissioner. Thus, the Tax Court’s decision must be affirmed. In Zaninovich v. Commissioner, 616 F.2d 429 (9th Cir. 1980), we considered the application of Treas.Reg. 1.461-l(a)(l) to prepaid rent expense. We held that under that regulation a taxpayer who paid his rent for the period from December 1, 1973 through November 30, 1974 on December 20, 1973 was entitled to deduct the entire rental payment on his 1973 tax return. In Zaninovich we adopted a “one-year rule” to distinguish between currently deductible expenses and capital expenditures having a useful life “substantially beyond” the close of the taxable year. Id. at 432. The “one-year rule” allows a full deduction in the year of payment where an expenditure creates an asset having a useful life of one year or less. . Id. We do not believe there is any legitimate basis for distinguishing feed payments from rental payments for the purposes of the “one-year rule.” Moreover, an argument exists for applying that rule to feed payments which is not applicable in the case of rental payments. Treas.Reg. § 1.471-6(a) represents an historical concession to farmers which allows them to use the cash method of accounting. One of the major purposes of allowing farmers to use the cash method was to simplify their record-keeping requirements. See United States v. Catto, 384 U.S. 102, 111 n.15, 86 S.Ct. 1311, 1316, 16 L.Ed.2d 398 (1966); Ward, Tax Postponement and the Cash Method Farmer: An Analysis of Revenue Ruling 75-152, 53 Texas L.Rev. 1119, 1148-49 (1975). Pro-ration of feed expenses, unlike rental payments, requires the maintenance of consumption records. We hold that the “one-year rule” in Zaninovich applies to the prepayment of feed expense. In the present case, substantially all of the feed" }, { "docid": "20107699", "title": "", "text": "the Cash Method Farmer: An Analysis of Revenue.Ruling 75-152,” 53 Tex. L. Rev. 1119 (1975). De La Cruz v. Commissioner, T.C. Memo. 1978-8. See also Heinold v. Commissioner, T.C. Memo. 1979-496. See the Commissioner’s position in Rev. Rui. 75-152, 1975-1 C.B. 144, which states that whether the prepayment was a condition imposed by the seller and whether such condition was meaningful should be taken into consideration in determining whether there was a business purpose for the prepayment. This statement is also contained in Rev. Rul. 79-229,1979-2 C.B. 210. Sec. 446 provided in pertinent part: SEC. 446. GENERAL RULE FOR METHODS OF ACCOUNTING. (b) Exceptions. — If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary or his delegate, does clearly reflect income. In Resnik v. Commissioner, 66 T.C. 74 (1976), affd. 556 F.2d 634 (7th Cir. 1977), we held that sec. 446(b) must first be applied at the partnership level. Because we found the prepaid interest deduction caused a material distortion of the partnership’s income, it was not necessary to examine distortion at the partner level. The test was applied at both levels in Clement v. United States, 217 Ct. Cl. 495, 580 F.2d 422 (1978). Bandes v. Commissioner, T.C. Memo. 1982-355; Heinold v. Commissioner, T.C. Memo. 1979-496; Haynes v. Commissioner, T.C. Memo. 1979-240. The \"one-year rule” allows a full deduction in the year of payment where an expenditure creates an asset having a useful life of 1 year or less. Commissioner v. Van Raden, 650 F.2d 1046, 1050 (9th Cir. 1981), affg. 71 T.C. 1083 (1979); Zaninovich v. Commissioner, 616 F.2d 429, 432 n. 6 (9th Cir. 1980), revg. 69 T.C. 605 (1978). As stated by the court in Zaninovich: \"While the \"one-year rule” is strictly applied to allow a full deduction in the year of payment where an expenditure creates an asset having a useful life beyond the taxable year of twelve months or less, it is not" }, { "docid": "11880358", "title": "", "text": "despite the Commissioner’s claim that a material distortion of income resulted. Fackler v. Commissioner, 39 B.T.A. 395 (1939), acquiesced in 1939-1 Cum.Bull. 11, followed in Court Holding Co. v. Commissioner, 2 T.C. 531 (1943), acquiesced in 1943-1 Cum.Bull. 5. In 1945, as a result of these cases, the Commissioner announced that he would no longer challenge taxpayer’s deductions for prepayment of interest due over periods of less than five years. I.T. 3740,1945-1 Cum. Bull. 109. In 1968, however, the Commissioner found it necessary to revise his position in this matter “[i]n view of certain abuses which have arisen with respect to prepayment of interest by taxpayers using the cash receipts and disbursements method of accounting. . . . ” Rev.Rul. 68-643, 1968-2 Cum.Bull. 76. Under the new Ruling, the Commissioner announced that prepaid interest expense deductions for periods as short as 12 months or less would be examined on a “case by case basis,” according to factors set forth in the Ruling, to assure that no material distortion of income results from the deduction. Id. This Ruling was relied on by the House Ways and Means Committee in its deliberations over the 1969 Tax Reform Act. See H.R.Rep. No. 91-413 (Part 1), 91st Cong. 1st Sess., 73; 1969-3 Cum.Bull. 200, 246. The treatment it affords prepaid interest is consistent with that afforded to prepaid rent, see Main & McKinney Building Co. v. Commissioner, 113 F.2d 81 (5th Cir.), cert. denied, 311 U.S. 688, 61 S.Ct. 66, 85 L.Ed. 444 (1940), and prepaid insurance premiums, Commissioner v. Boylston Market Association, 131 F.2d 966 (1st Cir. 1942). See H.R.Rep. No. 91-413 (Part 1), supra. In view of the Commissioner’s undeniably valid concern with limiting abuses of accounting methods and assuring that taxpayers’ incomes are clearly reflected in their returns, we have no doubt that it was well within the Commissioner’s authority to issue Revenue Ruling 68-643. The inconsistency between the 1945 and 1968 Rulings of the Commissioner is of no importance since the Commissioner may, of course, correct a mistake of law in his Rulings. Dixon v. United States, 381 U.S. 68," } ]

[ { "docid": "22574706", "title": "", "text": "disputed the majority’s characterization of the periods of delay. It concluded that “the lion’s share of delay in this case is attributable to defendant, and not to the state.” Id., at 502, 955 A. 2d, at 1127. But for Brillon’s “repeated maneuvers to dismiss his lawyers and avoid trial through the first eleven months following arraignment,” the dissent explained, “the difficulty in finding additional counsel would not have arisen.” Id., at 504, 955 A. 2d, at 1128. We granted certiorari, 554 U. S. 945 (2008), and now reverse the judgment of the Vermont Supreme Court. II The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” The speedy-trial right is “amorphous,” “slippery,” and “necessarily relative.” Barker, 407 U. S., at 522 (quoting Beavers v. Haubert, 198 U. S. 77, 87 (1905)). It is “consistent with delays and dependent] upon circumstances.” 407 U. S., at 522 (internal quotation marks omitted). In Barker, the Court refused to “quantify]” the right “into a specified number of days or months” or to hinge the right on a defendant’s explicit request for a speedy trial. Id., at 522-525. Rejecting such “inflexible approaches,” Barker established a “balancing test, in which the conduct of both the prosecution and the defendant are weighed.” Id., at 529, 530. “[S]ome of the factors” that courts should weigh include “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Ibid. Primarily at issue here is the reason for the delay in Brillon’s trial. Barker instructs that “different weights should be assigned to different reasons,” id., at 531, and in applying Barker, we have asked “whether the government or the criminal defendant is more to blame for th[e] delay,” Doggett v. United States, 505 U. S. 647, 651 (1992). Deliberate delay “to hamper the defense” weighs heavily against the prosecution. Barker, 407 U. S., at 531. “[M]ore neutral reason[s] such as negligence or overcrowded courts” weigh less heavily “but nevertheless should be considered since the ultimate responsibility for such circumstances must" } ]

[ { "docid": "21421438", "title": "", "text": "(II) the court improperly weighed the prejudice factor in favor of Moreno. I Although no single Barker factor is “a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial,” 407 U.S. at 533, 92 S.Ct. 2182, the second factor — reason for delay — is often critical. The Sixth Amendment is rarely violated by delay attributable entirely to the defendant, see Vermont v. Brillon, 556 U.S. 81, 90, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009), or by delay that serves some legitimate government purpose, Doggett, 505 U.S. at 656, 112 S.Ct. 2686 (“The government may need time to collect witnesses against the accused, oppose his pretrial motions, or, if he goes into hiding, track him down.”). See also Barker, 407 U.S. at 531, 92 S.Ct. 2182 (“[A] valid reason, such as a missing witness, should serve to justify appropriate delay.”). By the same token, delay stemming from deliberate government misconduct weighs heavily in favor of finding a violation. Doggett, 505 U.S. at 656, 112 S.Ct. 2686; Barker, 407 U.S. at 531, 92 S.Ct. 2182. ■ “Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground.” Doggett, 505 U.S. at 656-57, 112 S.Ct. 2686. “[Wjhenever an individual has been officially accused of a crime, not only is the government charged with the burden of bringing the accused swiftly to trial, but it is under an obligation to exercise due diligence in attempting to locate and apprehend the accused.” Rayborn v. Scully, 858 F.2d 84, 90 (2d Cir.1988). Delay caused by the failure to use “reasonable diligence” in locating a defendant weighs against the government, Dog-gett, 505 U.S. at 656-57, 112 S.Ct. 2686, although not to the same degree as deliberate misconduct, Raybom, 858 F.2d at 91. The following principles may bear upon whether the government acted with reasonable diligence. First, courts should consider the diligence of the government’s efforts based on what was known to the government at the time of the investigation, not what is known by hindsight after the defendant has been apprehended. “Once" }, { "docid": "14106672", "title": "", "text": "of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Put differently, the Supreme Court has stated that it is necessary for courts to balance “whether [the] delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (citing Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. 2182). None of the enumerated factors alone is sufficient to establish a violation of the Sixth Amendment; “[r]ather, they are related factors and must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533, 92 S.Ct. 2182. When a defendant’s constitutional right to a speedy trial has been violated, dismissal of the indictment is the only available option even when it allows a defendant who may be guilty of a serious crime to go free. See id. at 522, 92 S.Ct. 2182. Here, the government contends that the indictment was improperly dismissed because the majority of the pretrial delay was a result of Brown’s evasive actions to avoid arrest. Specifically, the government argues that Brown intentionally fled the state and used multiple aliases for the purpose of avoiding arrest on the indictment. Significantly, the government also asserts that Brown did not establish the requisite “substantial prejudice” to entitle him to dismissal of the indictment on speedy trial grounds. We disagree. Our application of the four Barker factors leads us to conclude that Brown was denied his right to a speedy trial in violation of the Sixth Amendment. A. Length of Delay “[T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay.” Doggett, 505 U.S. at" }, { "docid": "13018944", "title": "", "text": "112 S.Ct. 2686. How much delay is tolerable is “dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at 530-31, 92 S.Ct. 2182 (footnote omitted). Here, the Government filed its Complaint and obtained an arrest warrant almost two years ago, making the delay “presumptively prejudicial.” As mentioned earlier, however, the Complaint was initially under seal, imposing no hardship at all on Defendant, and he was not arrested until August 2011. Measuring from either date yields a delay little “beyond the bare minimum needed to trigger judicial examination of the claim.” Doggett, 505 U.S. at 652, 112 S.Ct. 2686; cf. id. (delay of eight-and-a-half years). This is an international case spanning four countries across three continents; it is not surprising that this prosecution takes longer than “an ordinary street crime.” At this point, if the length of delay helps Homaune, it is only by the barest of margins. Second, the Court must consider who is more to blame for the delay. “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.” Barker, 407 U.S. at 531, 92 S.Ct. 2182. On the other hand, a “more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id. Last, “a valid reason, such as a missing witness, should serve to justify appropriate delay.” Id. Here, the delay seems to be mainly justified. A missing defendant — even more than a missing witness — excuses delay. Homaune was certainly missing and beyond the reach of American law enforcement while he was in Iran. Indeed, in Doggett the Court implied that delay may always be appropriate while the defendant is living abroad. See 505 U.S. at 652-53, 112 S.Ct. 2686 (government negligent when its investigators “made no serious effort to test their" }, { "docid": "19964806", "title": "", "text": "United States v. King, 338 F.3d 794, 797 (7th Cir.2003) (stating explicitly the standard of review for a Speedy Trial Act claim and applying the same standard to a Sixth Amendment speedy trial claim); see also United States v. Sutcliffe, 505 F.3d 944, 956 (9th Cir.2007) (stating explicitly the standard of review for a constitutional speedy trial claim); United States v. Brown, 498 F.3d 523, 530 (6th Cir.) (same), cert. denied, — U.S.-, 128 S.Ct. 674, 169 L.Ed.2d 528 (2007). The Sixth Amendment right to a speedy trial is triggered by an arrest, indictment, or some other official accusation. Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); United States v. White, 443 F.3d 582, 589 (7th Cir.2006). In determining whether a defendant has been deprived of this speedy trial right, we consider and weigh the conduct of the government and the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In doing so we assess “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Doggett, 505 U.S. at 651, 112 S.Ct. 2686; see also White, 443 F.3d at 589. The length of the delay acts as a triggering mechanism. Unless the delay is presumptively prejudicial, we need not consider the other factors. Barker, 407 U.S. at 530, 92 S.Ct. 2182; White, 443 F.3d at 589. A delay approaching one year is presumptively prejudicial. United States v. Oriedo, 498 F.3d 593, 597 (7th Cir.2007); White, 443 F.3d at 589-90. Here, more than six and one-half years passed from the time of Arceo’s arrest in August 1999 to his plea in April 2007. This extraordinary delay stretches well beyond the minimum needed to trigger a further speedy trial analysis. See Doggett, 505 U.S. at 652, 112 S.Ct. 2686. This lengthy delay weighs in favor of Arceo. The second factor is the reason for the delay," }, { "docid": "23406876", "title": "", "text": "on a violation of the Act].”); Murphy, 241 F.3d at 453-54 (noting that the defendant raising a Speedy Trial Act violation bears the burden of proof). 2. Sixth Amendment right to speedy trial In addition to a criminal defendant’s rights under the Speedy Trial Act, the Sixth Amendment guarantees “the right to a speedy and public trial.” U.S. Const. amend. VI; see also Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) (holding that “the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment”). Whether there has been a violation of the constitutional right to a speedy trial is a fact-intensive inquiry requiring the balancing of “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). A one-year delay between accusation and the beginning of trial is generally considered “presumptively prejudicial.” Doggett, 505 U.S. at 652 n. 1, 112 S.Ct. 2686. In the present case, the criminal complaint was filed on May 3, 1999 and the trial commenced on January 24, 2000. Although an eight-month-and-three-week delay is substantial, it is not presumptively prejudicial in a case of this seriousness and complexity. Terry argues in his brief that “nearly 10 months is too long,” but he cites only robbery cases as authority. This is not a robbery case. Rather, it is a two-defendant, eleven-count case that involves multiple allegations of attempted murder. The eight-month-and-three-week delay was not “unreasonable enough to trigger the Barker inquiry” under these circumstances. Id. (noting that a delay sufficient to constitute presumptive prejudice “[d]epend[s] on the" }, { "docid": "9868128", "title": "", "text": "trial. The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. And it is well-settled that in determining whether a Sixth Amendment speedy trial violation has occurred, a court must balance four factors: (i) whether the delay was uncommonly long; (ii) whether the criminal defendant or the government is more to blame for that delay; (iii) whether, in due course, the defendant asserted his right to a speedy trial; and (iv) whether prejudice resulted to the defendant from the delay. Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (applying four-factor test adopted in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). Significantly, the first factor also acts as a threshold requirement. Doggett, 505 U.S. at 651-62, 112 S.Ct. 2686. Thus, if the delay is not “presumptively prejudicial,” the inquiry comes to an end. Id.; Barker, 407 U.S. at 530, 92 S.Ct. 2182 (“Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.”). And the Supreme Court has suggested that a delay over one year is presumptively prejudicial. Doggett, 505 U.S. at 652 n. 1, 112 S.Ct. 2686 (noting that “lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year”). These principles, applied here, compel the conclusion that the Virginia court’s rejection of Slavek’s speedy trial claim was not an unreasonable application of federal law. The record reflects that Slavek was indicted on March 1, 2000, and arrested and jailed on March 4, 2000. A hearing date was initially set for June 30, 2000, but continued to July 17, 2000 to accommodate the Commonwealth’s attorney who was in a carryover jury trial. Significantly, during the July 17, 2000 hearing, Slavek’s counsel requested a two-month continuance of the trial date for time to brief an issue. Commonwealth v. Slavek, CR00-1143, Criminal Continuance Order (Va.Cir. Ct. July 17, 2000); (7/17/00 Tr. at 20-25). .The Commonwealth" }, { "docid": "2473794", "title": "", "text": "at 530, 92 S.Ct. 2182. The government concedes, and we agree, that the delay here was long enough to trigger Barker analysis, see Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), but it remains shorter than others that we have upheld against challenge, see Lopesierra-Gutierrez, 708 F.3d at 202-03 (delay of three-and-a-half years); see also Barker, 407 U.S. at 531, 92 S.Ct. 2182 (“[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.”). The second factor, which asks “whether the government or the criminal defendant is more to blame for [the] delay,” Doggett, 505 U.S. at 651, 112 S.Ct. 2686, also yields a mixed answer. See supra at 1076-77 (describing the delays). Some of the delay, such as the initial ends-of-justice continuance and the continuance for codefen-dant Bailey to obtain new counsel, was fully justified and cannot be “blamed” on either the government or Rice; some was caused by Rice’s lawyer’s scheduling decisions and is attributable to Rice, see Vermont v. Brillon, 556 U.S. 81, 129 S.Ct. 1283, 1290-92, 173 L.Ed.2d 231 (2009); and some was due to the court’s trial schedule, which is ultimately attributable to the government, see Barker, 407 U.S. at 531, 92 S.Ct. 2182. The third factor, the defendant’s assertion of his right, cuts decidedly against Rice because he did not raise any Speedy Trial Act challenge until nearly a year after his arraignment, and, as noted earlier, never alleged a Sixth Amendment violation. His counsel orally raised vague Speedy Trial Act concerns on two occasions after moving to dismiss, but he also expressly agreed to the last two postponements of the trial. Finally, although Rice suffered lengthy “pretrial incarceration” and “anxiety and concern,” he does not even attempt to argue that he suffered “the most serious” form of prejudice: the impairment of his defense. Id. at 532, 92 S.Ct. 2182. Taken together, the four factors suggest that Rice would have at least a debatable, if not persuasive, Sixth Amendment claim under de novo review. But in light" }, { "docid": "12995812", "title": "", "text": "a $200 special assessment. Tchibassa filed a timely notice of appeal. II. We address separately Tchibassa’s challenges to the district court’s speedy trial right determination, evidentiary rulings and Guidelines sentence. A. Speedy Trial Right The Sixth Amendment to the United States Constitution expressly guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial.” Excessive delay in prosecuting a defendant after he is indicted or arrested violates this Sixth Amendment right. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (arrest); Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (indictment). Tchibassa contends that the nearly 11 years that elapsed between his September 25, 1991 indictment and his arrest on July 11, 2002 constitute an excessive delay and that the district court therefore erred in denying his motion to dismiss on that basis. We affirm the district court’s denial of the motion. In deciding a speedy trial claim a court applies a “balancing test, in which the conduct of both the prosecution and the defendant are [sic] weighed.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. The United States Supreme Court has identified four factors to be considered: “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id.; see also Doggett, 505 U.S. at 651, 112 S.Ct. 2686 (“Our cases ... have qualified the literal sweep of the [speedy trial] provision by specifically recognizing the relevance of four separate enquiries: whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182)). The first factor entails “a double enquiry”: First, “[s]imply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay since, by definition, he cannot complain" }, { "docid": "3256104", "title": "", "text": "v. United States, 505 U.S. 647, 651-52, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). Given that Mr. Mitchell’s trial commenced one year and seven days after his arrest, this Court moves to the second, third, and fourth factors. Under the Barker scheme, there are neutral, valid, or deliberate reasons for trial delay attributable to the government. 407 U.S. at 531, 92 S.Ct. 2182. A neutral delay, such as negligence or overcrowded courts, will weigh against the government, but not heavily. Id. Valid delays, like a missing witness, justify appropriate delay. Id. Deliberate delays used to hamper a defense weigh heavily against the government. Id. Delay may also be attributable to defendants. Id. at 529, 92 S.Ct. 2182. Acting as waivers, these delays weigh against the defendant, not the government. Id. \"The burden is on the government to justify the delay....\" Goss, 646 F.Supp.2d at 141 (citing Barker, 407 U.S. at 531, 92 S.Ct. 2182 (\"Closely related to length of delay is the reason the government assigns to justify the delay.\")). In its opposition, the government sets forth the pretrial neutral, valid, and defendant-caused delays and argues that, as a whole, they did not evince an “unconscionable delay.” Opp’n and Mem. of Law 18, 20, App. A, Apr. 9, 2010, ECF No. 101. The Court finds that the reasons for delay fall mainly into the neutral or defendant-caused categories. Neutral delays resulting from the Court’s docket and this Court’s consideration of government motions were significant but not onerous or unusual. The defendant also caused significant delays with his substitution of counsel, as well as his motions to exclude calculations from the Speedy Trial Act and to continue the trial. Finally, an unfortunate death in the prosecutor’s immediate family created an unavoidable continuance, which the Court finds to be a valid delay. Accordingly, the Court concludes that the reasons for delay do not support a Sixth Amendment violation. The third factor, defendant’s assertion of his right to a speedy trial, is critical to proving the right was denied. Barker, 407 U.S. at 531-32, 92 S.Ct. 2182. On June 26," }, { "docid": "12995824", "title": "", "text": "505 U.S. at 654, 112 S.Ct. 2686. The Dog-gett Court expressly noted that, if it were true, as the government suggested (contrary to the record), “that Doggett knew of his indictment years before he was arrested ..., Barker’s third factor, concerning invocation of the right to a speedy trial, would be weighed heavily against him.” Id. at 653, 112 S.Ct. 2686. Because the record supports the district court’s finding that Tchibassa knew of all of the charges contained in the sealed indictment as early as 1994, the third factor also weighs against his speedy trial claim. Finally, the fourth Barker factor— prejudice from delay — does nothing to advance Tchibassa’s speedy trial claim. “[U]nreasonable delay between formal accusation and trial threatens to produce more than one sort of harm, including ‘oppressive pretrial incarceration,’ ‘anxiety and concern of the accused,’ and ‘the possibility that the [accused’s] defense will be impaired’ by dimming memories and loss of exculpatory evidence.” Doggett, 505 U.S. at 654, 112 S.Ct. 2686 (quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182). The first two listed harms are of no significance here as Tchibassa was not impris oned until after his arrest and he displayed no concern over the years about the pending criminal charges, in fact denying he was even aware of them. Cf. id. (noting Doggett could probably not claim first two harms “since he was subjected neither to pretrial detention nor, he has successfully contended, to awareness of unresolved charges against him”). This leaves only the third form of prejudice — possible impairment of the defendant’s case — which the Supreme Court has described as “ ‘the most serious ... because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ ” Id. (quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182). Tchibassa alleges only generally that the passage of time compromised his “ability to locate witnesses in West Africa who could confirm Tchibassa’s role in FLEC and the Swan negotiations in 1991,” Opening Br. 26, without identifying any material witness much less a failed attempt to locate" }, { "docid": "19964807", "title": "", "text": "whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Doggett, 505 U.S. at 651, 112 S.Ct. 2686; see also White, 443 F.3d at 589. The length of the delay acts as a triggering mechanism. Unless the delay is presumptively prejudicial, we need not consider the other factors. Barker, 407 U.S. at 530, 92 S.Ct. 2182; White, 443 F.3d at 589. A delay approaching one year is presumptively prejudicial. United States v. Oriedo, 498 F.3d 593, 597 (7th Cir.2007); White, 443 F.3d at 589-90. Here, more than six and one-half years passed from the time of Arceo’s arrest in August 1999 to his plea in April 2007. This extraordinary delay stretches well beyond the minimum needed to trigger a further speedy trial analysis. See Doggett, 505 U.S. at 652, 112 S.Ct. 2686. This lengthy delay weighs in favor of Arceo. The second factor is the reason for the delay, and it is this factor that is at the heart of Arceo’s claim. Different weights should be given to different reasons for delay: “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence ... should be weighted less heavily_” Barker, 407 U.S. at 531, 92 S.Ct. 2182. Arceo contends the delay is attributable to the government’s negligence. The government argues that the principal reason for the delay was Arceo’s intentional attempt to evade law enforcement. Here there were a few reasons for the delay. For one, when Arceo was indicted on November 4, 1999, a minute entry reflects that an order for Arceo’s arrest and detention would be issued but, for some inexplicable reason — the government suggests a clerical error in the clerk’s office— none was entered. From the best we can glean from the record, for several months no one noticed that an arrest warrant had not been issued. Then on July 27, 2000, this case" }, { "docid": "13018943", "title": "", "text": "The Court consequently concludes that, at least at this point, there has been no violation of the Sixth Amendment speedy-trial right. The first Barker factor— whether the delay before trial was uncommonly long — “is actually a double enquiry.” Doggett, 505 U.S. at 651, 112 S.Ct. 2686. First, to trigger the speedy-trial analysis, a defendant must allege an abnormally long delay “since, by definition, he cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary promptness.” Id. at 652, 112 S.Ct. 2686. Courts sometimes call this trigger a “presumptively prejudicial” delay. See id. Other circuits have generally found a delay exceeding one year to be “presumptively prejudicial,” and the D.C. Circuit has not questioned that rule of thumb. See United States v. Taylor, 497 F.3d 673, 677 (D.C.Cir.2007). The second half of the inquiry considers, “as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Doggett, 505 U.S. at 652, 112 S.Ct. 2686. How much delay is tolerable is “dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at 530-31, 92 S.Ct. 2182 (footnote omitted). Here, the Government filed its Complaint and obtained an arrest warrant almost two years ago, making the delay “presumptively prejudicial.” As mentioned earlier, however, the Complaint was initially under seal, imposing no hardship at all on Defendant, and he was not arrested until August 2011. Measuring from either date yields a delay little “beyond the bare minimum needed to trigger judicial examination of the claim.” Doggett, 505 U.S. at 652, 112 S.Ct. 2686; cf. id. (delay of eight-and-a-half years). This is an international case spanning four countries across three continents; it is not surprising that this prosecution takes longer than “an ordinary street crime.” At this point, if the length of delay helps Homaune, it is only by the barest of margins." }, { "docid": "22462184", "title": "", "text": "delay’s result.” Id. at 651, 112 S.Ct. 2686 (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). None of these factors alone is sufficient to establish a violation of the Sixth Amendment. Instead, the Supreme Court declared that “these are related factors and must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533, 92 S.Ct. 2182. When a defendant’s constitutional right to a speedy trial has been violated, dismissal of the indictment is the only remedy even when it allows a defendant who may be guilty of a serious crime to go free. See id. at 522, 92 S.Ct. 2182. 1. Length of the Delay In all Sixth Amendment speedy trial cases, the length of the delay is the triggering mechanism. As the Doggett Court stated, “simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay, since, by definition, he cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary promptness.” Doggett, 505 U.S. at 651-52, 112 S.Ct. 2686 (citations omitted). In the instant case, the parties agree that the delay before trial is sufficient to trigger speedy trial concerns. 2. Reasons for the Delay If a defendant shows a delay sufficient to trigger speedy trial concerns, the district court must then address the related issue of reasons for the delay. The core task is determining which party shoulders the balance of blameworthiness for this delay. In analyzing this factor, the Supreme Court has noted that “different weights should be assigned to different reasons” for delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182. Thus, the Supreme Court held in Barker: A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather" }, { "docid": "2473793", "title": "", "text": "omitted). The absence of a Speedy Trial Act violation does not ipso facto defeat a Sixth Amendment speedy trial claim. See 18 U.S.C. § 3173. But as a number of courts have noted, it will be an “unusual case” in which the Act is followed but the Constitution violated. See, e.g., United States v. Bieganowski, 313 F.3d 264, 284 (5th Cir. 2002); United States v. Davenport, 935 F.2d 1223, 1238-39 (11th Cir.1991); United States v. Nance, 666 F.2d 353, 360 (9th Cir.1982). Even more exceptional must be the case in which the Act is followed but there is a “clear or obvious” Sixth Amendment error. Our analysis of Rice’s prosecution in light of the four factors enumerated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), convinces us this is not that rare case. Barker teaches that in assessing whether the Sixth Amendment has been violated, we consider the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. at 530, 92 S.Ct. 2182. The government concedes, and we agree, that the delay here was long enough to trigger Barker analysis, see Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), but it remains shorter than others that we have upheld against challenge, see Lopesierra-Gutierrez, 708 F.3d at 202-03 (delay of three-and-a-half years); see also Barker, 407 U.S. at 531, 92 S.Ct. 2182 (“[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.”). The second factor, which asks “whether the government or the criminal defendant is more to blame for [the] delay,” Doggett, 505 U.S. at 651, 112 S.Ct. 2686, also yields a mixed answer. See supra at 1076-77 (describing the delays). Some of the delay, such as the initial ends-of-justice continuance and the continuance for codefen-dant Bailey to obtain new counsel, was fully justified and cannot be “blamed” on either the government or Rice; some was caused by Rice’s lawyer’s scheduling decisions and is attributable to" }, { "docid": "22462183", "title": "", "text": "U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1983)); see also United States v. Schlei, 122 F.3d 944, 986 (11th Cir.1997). In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court identified four factors that district courts must consider in determining whether a defendant has been denied a speedy trial in violation of the Sixth Amendment: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the Defendant. Twenty years later the Court revisited the issue in Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) and refined the inquiry that district courts must pursue. The Court stated that it is necessary for district courts to balance “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Id. at 651, 112 S.Ct. 2686 (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). None of these factors alone is sufficient to establish a violation of the Sixth Amendment. Instead, the Supreme Court declared that “these are related factors and must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533, 92 S.Ct. 2182. When a defendant’s constitutional right to a speedy trial has been violated, dismissal of the indictment is the only remedy even when it allows a defendant who may be guilty of a serious crime to go free. See id. at 522, 92 S.Ct. 2182. 1. Length of the Delay In all Sixth Amendment speedy trial cases, the length of the delay is the triggering mechanism. As the Doggett Court stated, “simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay, since, by definition, he cannot complain that the government has denied him a ‘speedy’" }, { "docid": "14106680", "title": "", "text": "of the criminal charges filed against him). Brown’s demand for a speedy trial was a proper vehicle to put the government on notice of the potential violation of Brown’s constitutional right, and the demand ultimately weighs in Brown’s favor although it was made after his arrest. D. Prejudice to the Defendant The last factor to consider is prejudice to the defendant. When the delay is lengthy and attributable to bad faith by the government, no showing of prejudice is required. See Doggett, 505 U.S. at 657, 112 S.Ct. at 2693. However, when the government has used reasonable diligence to pursue a defendant, the defendant must show that the delay caused “actual prejudice” to his defense. Actual prejudice is determined by examining whether the defendant has suffered (1) oppressive pretrial incarceration; (2) anxiety and concern; and (3) impairment to his defense. See Barker, 407 U.S. at 532, 92 S.Ct. 2182. The last factor is afforded substantial weight since the inability of a defendant to adequately prepare his case skews the fairness of the entire system. See id. Finally, when the government’s negli gence caused the delay, the need to prove prejudice diminishes as the delay increases. See Doggett, 505 U.S. at 657, 112 S.Ct. 2686. The Supreme Court has recognized that in some cases, however, “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Id. at 655, 112 S.Ct. 2686. As a result, it is not always necessary for a defendant to pinpoint with specificity how the delay prejudiced his defense. See id. at 648, 112 S.Ct. 2686 (finding that an affirmative showing of actual prejudice was not necessary given that the length of delay was six years, which is six times as long as that generally sufficient to trigger judicial review). The amount of prejudice that the defendant must show depends on the reasons for the delay. “While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria ... it is part of the mix of relevant facts, and its importance" }, { "docid": "2473795", "title": "", "text": "Rice, see Vermont v. Brillon, 556 U.S. 81, 129 S.Ct. 1283, 1290-92, 173 L.Ed.2d 231 (2009); and some was due to the court’s trial schedule, which is ultimately attributable to the government, see Barker, 407 U.S. at 531, 92 S.Ct. 2182. The third factor, the defendant’s assertion of his right, cuts decidedly against Rice because he did not raise any Speedy Trial Act challenge until nearly a year after his arraignment, and, as noted earlier, never alleged a Sixth Amendment violation. His counsel orally raised vague Speedy Trial Act concerns on two occasions after moving to dismiss, but he also expressly agreed to the last two postponements of the trial. Finally, although Rice suffered lengthy “pretrial incarceration” and “anxiety and concern,” he does not even attempt to argue that he suffered “the most serious” form of prejudice: the impairment of his defense. Id. at 532, 92 S.Ct. 2182. Taken together, the four factors suggest that Rice would have at least a debatable, if not persuasive, Sixth Amendment claim under de novo review. But in light of Rice’s forfeiture, we can reverse only for plain error, and we cannot conclude that the Barker analysis demonstrates a “clear or obvious” constitutional error in this case. Marcus, 130 S.Ct. at 2164. Because any error was not “clear or obvious,” we need not address the other requirements for relief under plain error review. IV For the foregoing reasons, we reject Rice’s Speedy Trial Act and Sixth Amendment challenges and affirm his convictions. Because Rice did not make the specific arguments he raises on appeal in his pretrial motion to dismiss (at least not in the motion to dismiss included in the record before us), we should arguably either deem his claims waived or review only for plain error. See United States v. Loughrin, 710 F.3d 1111, 1121 (10th Cir.2013) (specific Speedy Trial Act arguments not raised below are waived); United States v. O’Connor, 656 F.3d 630, 637-38 (7th Cir.2011) (specific Speedy Trial Act arguments not raised below are reviewed at most for plain error); cf. United States v. Taylor, 497 F.3d 673, 676 &" }, { "docid": "12875086", "title": "", "text": "that the length of delay, even if inappropriately long, outweighs the other Barker factors. Indeed, the second Barker factor — the cause of the delay — weighs in favor of the government. Though the government bears the “ultimate responsibility” for justifying the delay, the record here does not disclose any “deliberate attempt to delay the trial in order to hamper the defense.” Barker, 407 U.S. at 531, 92 S.Ct. 2182. The district court found that “most of the delay in the Superior Court cases stem from motions filed on Drake’s behalf, changes in counsel (of which there had been no less than four), and Drakes’ [sic] several filing [sic] of waiver [sic] of his right to a speedy trial only to ‘reassert’ the same right in subsequent proceedings.” We agree with the lower court that the reason for the delay weighs against finding a Speedy Trial Clause violation. The third Barker factor, the defendant’s assertion of his right to a speedy trial, also weighs in favor of the government. Though Drake asserted his right to a speedy trial three times, he also expressly waived the right four times. Finally, Drake cannot establish that he was prejudiced. The Supreme Court has identified three interests the right to a speedy trial serves: “to prevent oppressive pretrial incarceration ... to minimize anxiety and concern of the accused ... [and] to limit the possibility that the defense will be impaired.” Id. at 532, 92 S.Ct. 2182. The Court emphasized that “the most serious [form of prejudice] is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. Though Drake has been incarcerated since his arrest in 2003 and has suffered anxiety and concern, there is no showing that the delay impaired his defense. No witnesses died or disappeared; nothing in the record demonstrates that evidence shown to be helpful to the defense was lost. Drake’s pretrial incarceration was not “oppressive” or unjustified, and his anxiety and concern were no more than any criminal defendant experiences before trial. Accordingly, we are satisfied that the" }, { "docid": "2175659", "title": "", "text": "delay between his initial arrest and his trial. Asserting his constitutional and statutory speedy-trial rights, Lopesierra maintains that the three-and-a-half years he had to wait was simply too long. On both the constitutional and statutory claims, we review the district court’s legal conclusions de novo and its findings of facts for clear error. See United States v. Tchibassa, 452 F.3d 918, 924 (D.C.Cir.2006) (Sixth Amendment); United States v. Stubblefield, 643 F.3d 291, 294 (D.C.Cir.2011) (Speedy Trial Act). Although we understand Lopesierra’s frustration with the pace of proceedings, we ultimately find that given the complexity of the case the delay fell within lawful bounds. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court established a four-factor test for determining whether a defendant has been deprived of his Sixth Amendment right to a speedy trial: “[ljength 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. 2182. Applying these factors, we have emphasized that “[n]one ... is either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial; rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Tchibassa, 452 F.3d at 923 (internal quotation marks and alteration omitted). Here, it is indisputable that the delay was significant—two-and-a-half years longer than the one-year delay the Supreme Court has suggested to be “presumptively prejudicial.” Doggett v. United States, 505 U.S. 647, 651-52 & n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Nevertheless, it was considerably shorter than delays tolerated in prior cases. See, e.g., Tchibassa, 452 F.3d at 927 (no violation despite eleven-year delay). And more importantly, when the Supreme Court observed that “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge,” Barker, 407 U.S. at 531, 92 S.Ct. 2182, it could have been referring to this very case. Here, the district court and numerous attorneys had to untangle a complicated and far-reaching conspiracy," }, { "docid": "2175660", "title": "", "text": "is either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial; rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Tchibassa, 452 F.3d at 923 (internal quotation marks and alteration omitted). Here, it is indisputable that the delay was significant—two-and-a-half years longer than the one-year delay the Supreme Court has suggested to be “presumptively prejudicial.” Doggett v. United States, 505 U.S. 647, 651-52 & n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Nevertheless, it was considerably shorter than delays tolerated in prior cases. See, e.g., Tchibassa, 452 F.3d at 927 (no violation despite eleven-year delay). And more importantly, when the Supreme Court observed that “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge,” Barker, 407 U.S. at 531, 92 S.Ct. 2182, it could have been referring to this very case. Here, the district court and numerous attorneys had to untangle a complicated and far-reaching conspiracy, execute fifteen extraditions, fairly treat all fifteen co-defendants, collect and decipher foreign evidence, and coordinate with foreign witnesses—all serious obstacles to a quick resolution. Furthermore, Lopesier-ra, who himself contributed to the delay by filing pretrial motions, taking an interlocutory appeal, and seeking a continuance, fails to demonstrate that the government was to blame for the delay. Nor does he offer reason to believe that the delay actually prejudiced his defense. Accordingly, we conclude that the delay, though significant, was neither so unjustified nor so prejudicial as to violate the Sixth Amendment, and we thus turn to Lopesierra’s statutory claim. The Speedy Trial Act provides that “the trial of a defendant charged ... with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1) (emphasis added). Subsection h of the statute enumerates certain periods of" } ]

[ { "docid": "361741", "title": "", "text": "to arbitration pursuant to that clause. The district court accordingly did not err in concluding that the securities law and RICO claims were submitted. C.D. Anderson also argues that the arbitration award cannot have preclu- sive effect in this case. This Circuit has held that “[a]n arbitration decision can have res judicata or collateral estoppel effect, even if the underlying claim involves the federal securities laws.” Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1360 (9th Cir.1985). Res judicata and collateral estoppel questions are reviewed de novo. A & A Concrete v. White Mountain Apache Tribe, 781 F.2d 1411, 1414 (9th Cir.1986), cert. denied, — U.S. -, 106 S.Ct. 2008, 90 L.Ed.2d 659 (1986). Res judicata “bars ‘all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties ... on the same cause of action.’ ” McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir.1986); Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir.1982), cert. denied 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982) (both opinions quoting Ross v. International Brotherhood of Electrical Workers, 634 F.2d 453, 457 (9th Cir.1980)). Four criteria should be considered in determining whether successive lawsuits involve the same cause of action: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. Costantini, 681 F.2d at 1201-02. “The last of these criteria is the most important.” Id. As to whether the arbitration involved the same cause of action as this suit, both suits arose out of the same transactional nucleus of facts, namely the trading that occurred in connection with Michael Lemos’ account. Therefore, there is identity of the cause of action between the Award and this case. C.D. Anderson complains that insofar as the arbitrators found negligence or violations of" } ]

[ { "docid": "8802943", "title": "", "text": "important factor in the “transactional” analysis of whether “facts are so woven together as to constitute a single claim” is whether, “taken together, they form a convenient unit for trial purposes.” Id. (emphasis supplied). The Exceptions to the General Rule Concerning Splitting stated at Restatement (Second) § 26 include, as relevant here, agreement of the parties to splitting, reservation by the first court of the right to maintain a second action, and a statutory scheme contemplating splitting. Restatement (Second) of Judgments § 26(1); see Sidney v. Zah, 718 F.2d 1453, 1459 (9th Cir.1983). 2 Our claim preclusion decisions are consistent with the basic approach of the Restatement (Second). We, of course, apply Ninth Circuit precedent, which comports with the Restatement (Second). The Ninth Circuit test to determine a “claim” for purposes of the merger and bar doctrines and rule concerning splitting is: (I) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same rights; and (4) whether the two suits arise out of the same transactional nucleus of facts. Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir.1980); Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.1982); Robertson v. Isomedix, Inc. (In re Int’l Nutronics), 28 F.3d 965, 969 (9th Cir.1994). Although the test cannot be applied mechanically and no one criterion is dispositive, the “most important” criterion is the “transactional nucleus of facts.” Costantini, 681 F.2d at 1201-02; Harris, 621 F.2d at 343. This requires the pragmatic case-by-case analysis that is central to Restatement (Second) § 24. Moreover, the second and third factors relating to the overlap of evidence and whether the same rights are infringed equate with the “convenient trial unit” of Restatement (Second) § 24(2). As the comments explain, “the relevance of trial convenience makes it appropriate to ask how far the witnesses or proofs in the second action would tend to overlap the witnesses or proofs relevant to the first.” Restatement (Seoond)" }, { "docid": "22201082", "title": "", "text": "the same relief prayed for; the relief must be founded upon the same facts, and the ... essential basis, of the relief sought must be the same.” (internal quotation marks omitted)); Curtis, 226 F.3d at 140 (holding that the trial court did not abuse its discretion in dismissing “Curtis II claims arising out of the same events as those alleged in Curtis I” which claims “would have been heard if plaintiffs had timely raised them”); Serlin, 3 F.3d at 223 (“[A] suit is duplicative if the claims, parties, and available relief do not significantly differ between the two actions.” (internal quotation marks omitted)). 1. Same Causes of Action We examine first whether the causes of action in Adams’s two suits are identical. To ascertain whether successive causes of action are the same, we use the transaction test, developed in the context of claim preclusion. “Whether two events are part of the same transaction or series depends on whether they are related to the same set of facts and whethér they could conveniently be tried together.” Western Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir.1992) (citing Restatement (Second) of Judgments § 24(1) (1982)). In applying the transaction test, we examine four criteria: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.1982). “The last of these criteria is the most important.” Id. at 1202. Here, it is clear that the two actions share a common transactional nucleus of facts. The first complaint detailed the factual allegations surrounding the reopening of Adams’s background investigation and used those allegations to support claims under the legal theories of negligence; violations of 42 U.S.C. §§ 1981, 1983, 1985; breach of contract; and declaratory relief. Adams’s first complaint specifically cited as support for her" }, { "docid": "23109889", "title": "", "text": "payments would involve different documentary evidence than a claim to recover delinquent payments for the same time period. The fact that some different evidence may be presented in this action to recover accurate payments, however, does not defeat the bar of res judicata. We have emphasized that the factors cited in Costanti-ni are “tools of analysis, not requirements.” Derish v. San Mateo-Burlingame Bd. of Realtors, 724 F.2d 1347, 1349 (9th Cir.1983). We have previously applied the doctrine of res judicata on the ground that the two claims aros'e out of the same transaction, without reaching other factors cited in Cos-tantini. See, e.g., C.D. Anderson & Co. v. Lemos, 832 F.2d 1097, 1100 (9th Cir.1987) (without reaching the other Costantini factors, we held second claim barred by res judicata solely on the ground that it arose out of the “same transactional nucleus of facts” as the original suit); Ulloa, 958 F.2d at 871 (holding that “[t]he test for whether a subsequent action is barred is whether it arises from the same transaction, or series of transactions as the original action”) (citation and internal quotation marks omitted); Sidney v. Zah, 718 F.2d 1453, 1459 (9th Cir.1983) (citing with approval transactional approach of Restatement (Second) of Judgments § 24 (1982), and noting that whether the claim “arise[s] out of the same transactional nucleus of facts fis] the criteria most stressed in our decisions”) (citation and internal quotation marks omitted). Because the Trusts’ claim to recover accurate payments from April 13, 1989 through March 21, 1989 arises out of the same transactional nucleus of facts as the Trusts’ second action for delinquent payments, we hold that this action is barred under the doctrine of res judicata. The policies underlying res judicata support our conclusion. The doctrine of res judicata “is motivated primarily by the interest in avoiding repetitive litigation, conserving judicial resources, and preventing the moral force of court judgments from being undermined.” Haphey v. Linn County, 924 F.2d 1512, 1518 (9th Cir.1991), rev’d in part on other grounds, 953 F.2d 549 (9th Cir.1992) (en bane). For this reason, res judicata bars not only" }, { "docid": "21073815", "title": "", "text": "Comm’n, 77 F.3d 1178, 1182 (9th Cir.1996). The Bank argues that Bancorp I should not be given preclusive effect because the court disposed of the action on summary judgment rather than adjudicating factual questions. However, the central question is whether the Bank had a right to proceed in state court when a federal court had already entered judgment. Thus, we ask whether the two causes of action are the same for purposes of claim preclusion. To answer that question, we look to the following factors: “(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.” International Union of Operating Eng’rs Employers Constr. Indus. Pension, Welfare and Training Trust Funds v. Karr, 994 F.2d 1426, 1429 (9th Cir.1993) (quoting Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.1982)). The last of these criteria is the most important. See Costantini, 681 F.2d at 1202. The two actions in these consolidated cases arise from the same transactional nucleus of facts. The Bank’s dissatisfaction with the FDIC’s accounting reports of its receivership lies at the heart of both actions. Bancorp I is based on Plaintiffs’ attempt to force the FDIC to produce the accounting reports required by 12 U.S.C. § 1821(d)(15), and every cause of action brought in Bancorp II is based on alleged defects in the reports appellants actually received. Plaintiffs could have brought in Bancorp I the claims asserted in Bancorp II. Claim preclusion bars grounds for recovery which could have been asserted in a prior suit between the same parties on the same cause of action. See Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) (“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" }, { "docid": "22201083", "title": "", "text": "Western Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir.1992) (citing Restatement (Second) of Judgments § 24(1) (1982)). In applying the transaction test, we examine four criteria: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.1982). “The last of these criteria is the most important.” Id. at 1202. Here, it is clear that the two actions share a common transactional nucleus of facts. The first complaint detailed the factual allegations surrounding the reopening of Adams’s background investigation and used those allegations to support claims under the legal theories of negligence; violations of 42 U.S.C. §§ 1981, 1983, 1985; breach of contract; and declaratory relief. Adams’s first complaint specifically cited as support for her claims against Coen, Moreland, and Dr. Weyers under 42 U.S.C. §§ 1981, 1983,1985, the same negative comments from CDHS employees dur ing the selection process that she used to support her claims in the present action. The present complaint differs only in that it identifies the CDHS employees who made the negative comments, names those CDHS employees and Corbin and Oaktree Investigations as defendants, and advances two new legal theories of recovery under the FCRA and the ICRA. The two other claims — one under 42 U.S.C. §§ 1981, 1983, 1985 and one seeking declaratory relief — are identical to those asserted in the first complaint. As Adams herself concedes, the claims in both complaints relate to the same set of facts and form a convenient trial unit because they “disclose!] a cohesive narrative” of Adams’s relationship with CDHS and the disputed withdrawal of the conditional job offer after the continuation of the background investigation. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir.2005). In addition, any judgment in the present action necessarily" }, { "docid": "22201084", "title": "", "text": "claims against Coen, Moreland, and Dr. Weyers under 42 U.S.C. §§ 1981, 1983,1985, the same negative comments from CDHS employees dur ing the selection process that she used to support her claims in the present action. The present complaint differs only in that it identifies the CDHS employees who made the negative comments, names those CDHS employees and Corbin and Oaktree Investigations as defendants, and advances two new legal theories of recovery under the FCRA and the ICRA. The two other claims — one under 42 U.S.C. §§ 1981, 1983, 1985 and one seeking declaratory relief — are identical to those asserted in the first complaint. As Adams herself concedes, the claims in both complaints relate to the same set of facts and form a convenient trial unit because they “disclose!] a cohesive narrative” of Adams’s relationship with CDHS and the disputed withdrawal of the conditional job offer after the continuation of the background investigation. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir.2005). In addition, any judgment in the present action necessarily would destroy or impair rights and interests established by the judgment in the first action. As Adams alleges in her present complaint, both the FCRA and the ICRA require consent to and disclosure of an investigation. See 15 U.S.C. § 1681b(b); Cal. Civil Code §§ 1786.10-.12. However, the central issues raised in the present complaint surrounding the legality of the reopening of Adams’s background investigation— whether the selection process was complete after Adams was medically cleared, whether CDHS lost the right to resume the background investigation when it rescinded for the first time Adams’s conditional offer of employment, or whether the background investigation had never been completed and Adams’s consent to the investigation remained valid — were squarely raised and argued by Adams in her claim for declaratory relief in the first complaint. Furthermore, although Adams argues that the additional report she uncovered on January 17, 2004, written by Oaktree Investigations and containing affidavits from Kennelly, Eehard, and Baker, constitutes “new” evidence, the report cannot be said to be “new” in any sense because, as" }, { "docid": "22201085", "title": "", "text": "would destroy or impair rights and interests established by the judgment in the first action. As Adams alleges in her present complaint, both the FCRA and the ICRA require consent to and disclosure of an investigation. See 15 U.S.C. § 1681b(b); Cal. Civil Code §§ 1786.10-.12. However, the central issues raised in the present complaint surrounding the legality of the reopening of Adams’s background investigation— whether the selection process was complete after Adams was medically cleared, whether CDHS lost the right to resume the background investigation when it rescinded for the first time Adams’s conditional offer of employment, or whether the background investigation had never been completed and Adams’s consent to the investigation remained valid — were squarely raised and argued by Adams in her claim for declaratory relief in the first complaint. Furthermore, although Adams argues that the additional report she uncovered on January 17, 2004, written by Oaktree Investigations and containing affidavits from Kennelly, Eehard, and Baker, constitutes “new” evidence, the report cannot be said to be “new” in any sense because, as Adams states in her complaint, it was dated April 3, 2003 and was provided to Adams by CDHS during discovery in the first action. In addition, the report is merely cumulative of CDHS’s response of May 13, 2003 to Adams’s petition for rehearing before the SPB, which explained that CDHS had withdrawn Adams’s conditional offer of employment because of her behavior in the balance of the selection process. Adams in her first complaint quotes liberally from CDHS’s response as factual support for her claims. Thus, the additional evidentiary detail surrounding Echard’s and Baker’s comments in the Oaktree Investigations report “is scarcely enough to establish that the instant lawsuit arises out of a different ‘transactional nucleus of facts’ than that which generated the [first] suit.” . Costantini, 681 F.2d at 1202; cf. Int’l Union of Operating Eng’rs-Employers Constr. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 1430 (9th Cir.1993) (“The fact that some different evidence may be presented in this action ... does not defeat the bar of res judicata.”). In addition," }, { "docid": "22201095", "title": "", "text": "basis undergird-ing her FCRA and ICRA claims when she filed the complaint in the first action. Adams’s petition for rehearing to the SPB squarely raised the issue of whether CDHS was permitted to resume its background investigation of her after the medical disqualification was withdrawn. In addition, the facts surrounding the allegedly illegal background investigation were laid out in CDHS’s response of May 2003 to Adam’s petition for rehearing before the SPB; CDHS used the information gleaned from the March 2003 investigation as additional support for its withdrawal of Adams’s conditional offer of employment. Significantly, Adams in her first complaint outlined the facts gleaned from the reopened background investigation and posited that the reopening of the investigation was “arguably illegal based upon the Fair Credit Reporting Act.” Adams was required to bring at one time all of the claims against a party or privies relating to the same transaction or event. See N. Assur. Co. of Am. v. Square D Co., 201 F.3d 84, 88 (2d Cir.2000); Nilsen v. City of Moss Point, 701 F.2d 556, 564 (5th Cir.1983) (en banc); Restatement (Second) of Judgments § 25, cmt. b (1982) (“It is immaterial that the plaintiff in the first action sought to prove the acts relied on in the second action and was not permitted to do so because they were not alleged in the complaint and an application to amend the complaint came too late.”). The district court acted within its discretion in dismissing Adams’s duplicative complaint with prejudice and preventing her from “fragment[ing] a single cause of action and [ ] litigating] piecemeal the issues which could have been resolved in one action.” Flynn v. State Bd. of Chiropractic Exam’rs, 418 F.2d 668, 668 (9th Cir.1969) (per curiam). AFFIRMED. . We note that we are affirming the district court’s dismissal on the basis that the second action was duplicative of the first, and not on the basis that the district court had the discretion to dismiss the second action as a sanction for failing to comply with the Rule 16 scheduling order issued in the first action. Cf." }, { "docid": "22201088", "title": "", "text": "causes of action arise from a common transactional nucleus of facts. See, e.g., Western Sys., 958 F.2d at 871; C.D. Anderson & Co. v. Lemos, 832 F.2d 1097, 1100 (9th Cir.1987); Costantini, 681 F.2d at 1201. Moreover, Adams seeks substantially the same relief in both actions — compensatory, exemplary, and punitive damages for the reopening of the background investigation and the withdrawal of her conditional offer of employment, allegedly in violation of her statutory and constitutional rights, and a declaratory judgment that CDHS unlawfully reopened her background investigation and withdrew her conditional offer of employment. It is clear that the claims in Adams’s present complaint arise out of the same transactional nucleus of facts asserted in her first action and that rights established by the judgment in the first action would be destroyed or impaired by a judgment in the present action. It is also plain that substantially the same evidence was and would be presented in both actions. Thus, under the Costantini factors, we conclude that the two suits involve the same cause of action. 2. Same Parties or Privies While Adams’s present complaint names five additional defendants, these new defendants are in privity with CDHS, because CDHS can be said to have “virtually represented” the new defendants in the first action. See Kourtis v. Cameron, 419 F.3d 989, 996 (9th Cir.2005). Although the concept of privity traditionally applied to a narrow class of relationships in which “a person [is] so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved,” we have expanded the concept to include a broader array of relationships which fit under the title of “virtual representation.” Id. (internal quotation marks omitted). The necessary elements of virtual representation are an identity of interests and adequate representation. Id. Additional features of a virtual representation relationship include “ ‘a close relationship, substantial participation, and tactical maneuvering.’” Id. (quoting Irwin v. Mascott, 370 F.3d 924, 930 (9th Cir.2004)). Here, three of the new defendants— Patricia Echard, Paulette Baker, and Patrick Kennelly — were employees of" }, { "docid": "22254105", "title": "", "text": "judicata and collateral estoppel therefore defeated any reasonable probability that Shapley would prevail on the merits in the present action. While recognizing that Shapley’s knee operation and his discovery that the delay in surgery had been injurious both occurred subsequent to the prior decision, the court below held that “the gravamen of the medical treatment claims for relief in both cases was the same.” Shapley v. Ignacio, No. CV-R-83-232-ECR, slip op. at 4 (D.Nev. Dec. 21, 1983), citing Williams v. Field, 394 F.2d 329, 332-33 (9th Cir.1968). Shapley argues that he should be allowed to relitigate the issue of deliberate medical indifference because the cause of action in his two suits is not the same for res judica-ta purposes and the issues are not identical for collateral estoppel purposes. Two cases involve the same cause of action where rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; where substantially the same evidence is presented in the two actions; where the suits involve infringement of the same right; and where the suits arise out of the same transactional nucleus of facts. Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir.1980) (per curiam). These criteria are mere tools of analysis, however; identity of claims “cannot be determined precisely by mechanistic application of a simple test.” Derish v. San Mateo-Burlingame Board of Realtors, 724 F.2d 1347, 1349 (9th Cir.1983), quoting Abramson v. University of Hawaii, 594 F.2d 202, 206 (9th Cir.1979). In the first action, Shapley advanced three major grievances in connection with his 1978 knee injury: (1) the doctors were withholding his prescriptions; (2) prison officials moved him to a unit further from the mess hall; and (3) prison officials refused to feed him in his cell. The first action involved no claim that prison officials denied or delayed knee surgery. By contrast, in the present action Shap-ley alleges that the delay in surgery from May 1978 until March 1983, causing permanent injury to his knee, reflected deliberate medical indifference. Shapley claims that several physicians recommended knee surgery between 1978 and the" }, { "docid": "12980815", "title": "", "text": "same parties or their privies.” Nordhom v. Ladish Co., 9 F.3d 1402, 1404 (9th Cir.1993). Moreover, because the “doctrine of [claim preclusion] is motivated primarily by the interest in avoiding repetitive litigation, conserving judicial resources, and preventing the moral force of court judgments from being undermined,” the doctrine precludes both all claims that were previously litigated, as well as “all claims that could have been asserted in the prior action.” International Union v. Karr, 994 F.2d 1426, 1430 (9th Cir.1993) (internal quotations and citations omitted). 1. Same Claim. Courts consider a variety of factors in determining whether successive lawsuits involve a single claim, or cause of action, such as: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same ■right; and (4) whether the two suits arise out of the same transactional nucleus of facts. Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-1202 (9th Cir.1982). These factors, however, are considered “tools of analysis, not requirements.” Karr, 994 F.2d at 1430 (quoting Derish v. San Mateo-Burlingame Bd. of Realtors, 724 F.2d 1347-1349 (9th Cir.1983)). The last of these criteria is considered to be the most important factor. Costantini, 681 F.2d at 1202. Therefore, courts can apply claim preclusion “on the grounds that two claims arose out of the same transaction, without reaching other factors cited in Costantini.” Karr, 994 F.2d at 1430; United States v. Northrop Corporation, 147 F.3d 905, 910 (9th Cir.1998) (finding that the second suit was part of the same cause of action by considering whether or not the suits arise out of the same transactional facts). a. Same Transaction. In determining whether two events are part of the same transaction, courts consider whether they are “related to the same set of facts and whether they could conveniently be tried together.” Karr, 994 F.2d 1426, 1429 quoting Western Systems, Inc. v. Ulloa, 958 F.2d 864, 870 (9th Cir.1992). Here, the Government concedes that “[t]he" }, { "docid": "22201086", "title": "", "text": "Adams states in her complaint, it was dated April 3, 2003 and was provided to Adams by CDHS during discovery in the first action. In addition, the report is merely cumulative of CDHS’s response of May 13, 2003 to Adams’s petition for rehearing before the SPB, which explained that CDHS had withdrawn Adams’s conditional offer of employment because of her behavior in the balance of the selection process. Adams in her first complaint quotes liberally from CDHS’s response as factual support for her claims. Thus, the additional evidentiary detail surrounding Echard’s and Baker’s comments in the Oaktree Investigations report “is scarcely enough to establish that the instant lawsuit arises out of a different ‘transactional nucleus of facts’ than that which generated the [first] suit.” . Costantini, 681 F.2d at 1202; cf. Int’l Union of Operating Eng’rs-Employers Constr. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 1430 (9th Cir.1993) (“The fact that some different evidence may be presented in this action ... does not defeat the bar of res judicata.”). In addition, the key evidence presented during trial in the first action regarding Adams’s claim of retaliation was the testimony of CDHS employees Moreland and Coen concerning Adams’s behavior during the selection process. Kennelly, Eehard, Baker, and Corbin all submitted declarations in the first action regarding the in-, formation gathered during the reopened background investigation in support of CDHS’s motion for summary judgment. As the district court stated in its order denying Adams’s motion for a new trial in the first action, “[t]his case largely turned on the jury’s assessment of the credibility of the defendants, who explained why they determined not to finalize their conditional offer of employment to [Adams].” Finally, although the FCRA and the ICRA establish distinct rights enforceable by litigants, this factor alone does not differentiate the causes of action. Cf. Derish v. San Mateo-Burlingame Bd. of Realtors, 724 F.2d 1347, 1349 (9th Cir.1983), overruling on other grounds recognized by Eichman v. Fotomat Corp., 759 F.2d 1434, 1437 (9th Cir.1985). Indeed, in the claim preclusion context, the most significant factor is that the" }, { "docid": "13471225", "title": "", "text": "Cir.1981). When a state judgment is involved, a second principle must be considered. Congress has commanded federal courts to give state court judgments the same full faith and credit as they would receive in the courts of the state, 28 U.S.C. § 1738. See, e.g., Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 & n. 6, 102 S.Ct. 1883, 1889 & n. 6, 72 L.Ed.2d 262 (1982) (28 U.S.C. § 1738 requires same preclusive effects in federal as state court). The Derishes acknowledge that a prior judgment on the merits between the same parties exists at the state level. They argue, however, that the state antitrust suit and the federal antitrust suit do not involve the same “claim.” If they are correct, res judicata will not bar the federal suit. E.g., Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir.1980) (res judicata precludes only claims arising out of the same “cause of action”). To determine whether the Derishes’ state and federal suits involve the same claim, we are assisted by asking: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982) (Costantini), quoting Harris v. Jacobs, 621 F.2d at 343. These are tools of analysis, not requirements, because identity of claims “cannot be determined precisely by mechanistic application of a simple test.” Abramson v. University of Hawaii, 594 F.2d 202, 206 (9th Cir.1979). However, examination for an identical “transactional nucleus-of facts” is clearly the most important factor, Harris v. Jacobs, 621 F.2d at 343; see also Brown v. Federated Department Stores, 653 F.2d at 1267 (“Two claims are the same if they arise from the same transactions or events.”). This case, however, adds another dimension. Federal courts" }, { "docid": "12980816", "title": "", "text": "1199, 1201-1202 (9th Cir.1982). These factors, however, are considered “tools of analysis, not requirements.” Karr, 994 F.2d at 1430 (quoting Derish v. San Mateo-Burlingame Bd. of Realtors, 724 F.2d 1347-1349 (9th Cir.1983)). The last of these criteria is considered to be the most important factor. Costantini, 681 F.2d at 1202. Therefore, courts can apply claim preclusion “on the grounds that two claims arose out of the same transaction, without reaching other factors cited in Costantini.” Karr, 994 F.2d at 1430; United States v. Northrop Corporation, 147 F.3d 905, 910 (9th Cir.1998) (finding that the second suit was part of the same cause of action by considering whether or not the suits arise out of the same transactional facts). a. Same Transaction. In determining whether two events are part of the same transaction, courts consider whether they are “related to the same set of facts and whether they could conveniently be tried together.” Karr, 994 F.2d 1426, 1429 quoting Western Systems, Inc. v. Ulloa, 958 F.2d 864, 870 (9th Cir.1992). Here, the Government concedes that “[t]he civil Forfeiture Action arises out of the same facts and circumstances as the civil penalty action.” (Facts ¶ 22). Accordingly, this factor is met. b. The in rem-in personam distinction: Claim-splitting is not authorized. The Government contends, however, that it can split its claim because this action is in personam while the prior action was in rem (Pl.’s Opp. at 11-12.) The Court finds the Government’s theory unavailing. The claim preclusive effect of successive in rem and in personam proceedings is a well-settled aspect of the doctrine. In an in personam proceeding, the court in B & B No. 10 v. Olsen, 121 F.2d 704 (2d Cir.1941), applied the claim preclusion doctrine using a prior in rem action. Olsen involved claims for damages arising from a collision between the plaintiffs barge and a tugboat. Initially, the plaintiff initiated an in rem proceeding against the tugboat, and the tugboat was found to be at fault. Id. at 704. Then, plaintiffs instituted an in personam suit against the owners of the tugboat regarding the same accident. Id." }, { "docid": "23109888", "title": "", "text": "by the Trusts in the first action to recover delinquent payments. Citing Costantini, 681 F.2d at 1202, the Trusts argue that we must reverse because the present action for accurate payments involves infringement of a different right than the prior action to collect delinquent payments. We disagree. The Trust Agreements conferred upon the Trusts the right to receive proper monthly contributions from the employer. May v. Parker-Abbott Transfer and Storage, Inc., 899 F.2d 1007, 1010 (10th Cir.1990). This single right under the contract inherently assumes that the employer’s contributions will be “both accurately computed and timely paid.” Id. The Trusts further argue that res judicata should not bar this action because the evidence in this action is not substantially the same as that which would have been presented in the settled actions. See Costantini, 681 F.2d at 1202 (whether substantially the same evidence will be presented in both actions is a factor we may consider in determining the applicability of res judicata). Karr does not dispute the Trusts’ contention that the claim to recover inaccurate payments would involve different documentary evidence than a claim to recover delinquent payments for the same time period. The fact that some different evidence may be presented in this action to recover accurate payments, however, does not defeat the bar of res judicata. We have emphasized that the factors cited in Costanti-ni are “tools of analysis, not requirements.” Derish v. San Mateo-Burlingame Bd. of Realtors, 724 F.2d 1347, 1349 (9th Cir.1983). We have previously applied the doctrine of res judicata on the ground that the two claims aros'e out of the same transaction, without reaching other factors cited in Cos-tantini. See, e.g., C.D. Anderson & Co. v. Lemos, 832 F.2d 1097, 1100 (9th Cir.1987) (without reaching the other Costantini factors, we held second claim barred by res judicata solely on the ground that it arose out of the “same transactional nucleus of facts” as the original suit); Ulloa, 958 F.2d at 871 (holding that “[t]he test for whether a subsequent action is barred is whether it arises from the same transaction, or series of transactions" }, { "docid": "10924816", "title": "", "text": "the issue in the prior action was framed in the same language or that the same theory of liability was charged as in the subsequent action. The basis of establishing an identity of issues is broader and more practical. In O’Brien v. City of Syracuse, 54 N.Y.2d 353, 445 N.Y.S.2d 687, 429 N.E.2d 1158 (1981), where a property owner failed to sustain a prior suit for de facto appropriation of his property, he was barred from relitigating that issue where the theory of liability asserted in the second action was trespass. Similarly, a prior state court determination on a quasi contract claim bars relitigation in federal court “as to any cause of action arising from the same oper ative facts.” RX Data Corp. v. Department of Social Services, 684 F.2d 192, 198 (2d Cir.1982). Thus, since the subsequent claim (unfair competition) could have been presented in the prior action, that claim was barred in federal court. Id. The court in Derish v. San Mateo-Burlingame Board of Realtors, supra, set forth helpful guidelines in determining the identity of issues. The court stated: To determine whether the Derishes’ state and federal suits involve the same claim, we are assisted by asking: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arose out of the same transactional nucleus of facts. Id. at 1349 (quoting Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir.1980)). Since I find an affirmative answer to all four factors suggested in Derish, I conclude that the claims raised herein were either actually litigated or could have been litigated in the prior state court actions. Therefore, the prior state court final judgments preclude relitigation of the issues. Failure to State a § 1983 Claim Alternatively, plaintiff has failed to state a § 1983 claim upon which relief can be granted and the claim should therefore be dismissed under Fed.R.Civ.P." }, { "docid": "22201094", "title": "", "text": "determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard.” (internal quotation marks omitted)); Ross v. Int’l Bhd. of Elec. Workers, 634 F.2d 453, 458 (9th Cir.1980) (“The question [before applying res judicata to bar the second suit] is ... whether [plaintiff] had a fair opportunity to litigate that claim before a competent court prior to bringing it to the court below.”). The allegedly illegal background investigation conducted by Oaktree Investigations occurred in March 2003, eight months before Adams filed her first action in state court in November 2003. In addition, the April 2003 Oaktree Investigations report upon which Adams bases her claims under the FCRA and the ICRA was made available to Adams as part of the discovery materials provided by CDHS. Adams herself admits that she uncovered this report on January 17, 2004, more than two months prior to the deadline in the first action for amending the complaint. Moreover, it is clear that Adams had knowledge of the factual basis undergird-ing her FCRA and ICRA claims when she filed the complaint in the first action. Adams’s petition for rehearing to the SPB squarely raised the issue of whether CDHS was permitted to resume its background investigation of her after the medical disqualification was withdrawn. In addition, the facts surrounding the allegedly illegal background investigation were laid out in CDHS’s response of May 2003 to Adam’s petition for rehearing before the SPB; CDHS used the information gleaned from the March 2003 investigation as additional support for its withdrawal of Adams’s conditional offer of employment. Significantly, Adams in her first complaint outlined the facts gleaned from the reopened background investigation and posited that the reopening of the investigation was “arguably illegal based upon the Fair Credit Reporting Act.” Adams was required to bring at one time all of the claims against a party or privies relating to the same transaction or event. See N. Assur. Co. of Am. v. Square D Co., 201 F.3d 84, 88 (2d Cir.2000); Nilsen v. City of Moss Point, 701 F.2d" }, { "docid": "17047851", "title": "", "text": "to be addressed when determining whether res judicata applies is whether the later filed suit arises from the same “cause of action” as the earlier suit. This concept is no less flexible than the concept of privity, and identity of claims “cannot be determined precisely by mechanistic application of a simple test.” Abramson v. University of Hawaii, 594 F.2d 202, 206 (9th Cir.1979), cited in Derish v. San Mateo-Burlingame Board of Realtors, 724 F.2d 1347, 1349. (9th Cir.1988). However, while no precise test is available, the courts have identified certain factors that may helpfully be examined. In Constantini v. Trans World Airlines, 681 F.2d 1199 (9th Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982), the court set forth the following factors: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. Id. at 1201-02, citing Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir.1980). An identical “transactional nucleus of facts” is the most important factor. 621 F.2d at 343; Derish, supra, 724 F.2d at 1349. The difficult analysis demanded by this amorphous concept is rendered even more difficult when the issue of exclusive federal jurisdiction is concerned, as in the present case; where state and federal courts lack concurrent jurisdiction, the two competing policies of exclusive federal jurisdiction and res judicata clash. See id. In this situation, the usual rule prohibiting splitting a cause of action is relaxed. Although this Court’s holding that the Secretary cannot be regarded as a privy of the Webster plaintiffs, it further holds that the usual prohibition against splitting a cause of action is inappropriate in the present instance. Restatement Second of Judgments § 61.-2(c) (Tentative Draft No. 5, 1978) states that the general rule does not apply when: [T]he plaintiff was unable to rely on a certain theory of the" }, { "docid": "22201087", "title": "", "text": "the key evidence presented during trial in the first action regarding Adams’s claim of retaliation was the testimony of CDHS employees Moreland and Coen concerning Adams’s behavior during the selection process. Kennelly, Eehard, Baker, and Corbin all submitted declarations in the first action regarding the in-, formation gathered during the reopened background investigation in support of CDHS’s motion for summary judgment. As the district court stated in its order denying Adams’s motion for a new trial in the first action, “[t]his case largely turned on the jury’s assessment of the credibility of the defendants, who explained why they determined not to finalize their conditional offer of employment to [Adams].” Finally, although the FCRA and the ICRA establish distinct rights enforceable by litigants, this factor alone does not differentiate the causes of action. Cf. Derish v. San Mateo-Burlingame Bd. of Realtors, 724 F.2d 1347, 1349 (9th Cir.1983), overruling on other grounds recognized by Eichman v. Fotomat Corp., 759 F.2d 1434, 1437 (9th Cir.1985). Indeed, in the claim preclusion context, the most significant factor is that the causes of action arise from a common transactional nucleus of facts. See, e.g., Western Sys., 958 F.2d at 871; C.D. Anderson & Co. v. Lemos, 832 F.2d 1097, 1100 (9th Cir.1987); Costantini, 681 F.2d at 1201. Moreover, Adams seeks substantially the same relief in both actions — compensatory, exemplary, and punitive damages for the reopening of the background investigation and the withdrawal of her conditional offer of employment, allegedly in violation of her statutory and constitutional rights, and a declaratory judgment that CDHS unlawfully reopened her background investigation and withdrew her conditional offer of employment. It is clear that the claims in Adams’s present complaint arise out of the same transactional nucleus of facts asserted in her first action and that rights established by the judgment in the first action would be destroyed or impaired by a judgment in the present action. It is also plain that substantially the same evidence was and would be presented in both actions. Thus, under the Costantini factors, we conclude that the two suits involve the same cause of" }, { "docid": "17047850", "title": "", "text": "analagous to the statutory intent that underlies EEOC enforcement actions, and analogically, the Secretary’s abilities to act as a privy must be narrowly construed. One final factor counsels against a finding that the Secretary served as a privy. The Marshall judgment was not intended by the parties to settle any of the Webster employees’ claims under the AWHA; the Secretary’s complaint sought to enjoin only violations of the FLSA. Indeed, as the Secretary admits, he is without authority to sue under the state statute. Secretary’s amicus brief at 16. The settlement stated that it included “all claims or causes of action comprehended by the complaint [filed by the Secretary of Labor].” Moreover, the settlement release signed by the employees stated: “I hereby acknowledge that my acceptance of this check is in full satisfaction of all Fair Labor Standards Act claims which I may have * * The clear intention of the settlement was to release Bechtel from all FLSA claims, not from all claims that were being pursued by the employees. C. The. third issue to be addressed when determining whether res judicata applies is whether the later filed suit arises from the same “cause of action” as the earlier suit. This concept is no less flexible than the concept of privity, and identity of claims “cannot be determined precisely by mechanistic application of a simple test.” Abramson v. University of Hawaii, 594 F.2d 202, 206 (9th Cir.1979), cited in Derish v. San Mateo-Burlingame Board of Realtors, 724 F.2d 1347, 1349. (9th Cir.1988). However, while no precise test is available, the courts have identified certain factors that may helpfully be examined. In Constantini v. Trans World Airlines, 681 F.2d 1199 (9th Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982), the court set forth the following factors: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two" } ]

[ { "docid": "22768364", "title": "", "text": "nature. B. Finding of Contempt A court’s inherent power to hold a party in civil contempt may be exercised only when (1) the order the party allegedly failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the party has not diligently attempted in a reasonable manner to comply. See EEOC v. Local 638, Local 28 of Sheet Metal Workers’ Int’l Ass’n, 753 F.2d 1172, 1178 (2d Cir.1985), aff'd, 478 U.S. 421,106 S.Ct. 3019, 92 L.Ed.2d 344 (1986); Powell v. Ward, 643 F.2d 924, 931 (2d Cir.) (per curiam), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981). These prerequisites have been satisfied here. Defendants contend that the district court’s May 4 TRO was unclear- and unconstitutionally vague because it contained prohibitions on “tortious harassment” and limitations allowing only “reasonably quiet conversation” in sidewalk counseling that are so fraught with ambiguity as to be an unconstitutional hindrance on their First Amendment rights. Fed.R.Civ.P. 65(d) requires that injunc-tive orders be “specific in terms” and “describe in reasonable detail ... the act or acts sought to be restrained.” The Rule was intended to prevent an uncertain or vague decree from becoming the basis for a contempt citation. See Schmidt v. Lessard, 414 U.S. 473, 476, 94 S.Ct. 713, 715, 38 L.Ed.2d 661 (1974) (per curiam); Portland Feminist Women’s Health Ctr. v. Advocates for Life, Inc., 859 F.2d 681, 685 (9th Cir.1988) (order must be reasonably clear so that ordinary person knows precisely what acts are prohibited). To comply with the specificity and clarity requirements, an injunction must “be specific and definite enough to apprise those within its scope of the conduct that is being proscribed.” In re Baldwin-United Corp., 770 F.2d 328, 339 (2d Cir.1985). The May 5 order was sufficiently clear as to what acts were proscribed. It prohibited trespass and obstruction that had the effect of blocking “ingress into and egress from any facility at which abortions are performed” within a specific geographic area. It barred physical abuse and tortious harassment of patients and employees. These prohibitions were" } ]

[ { "docid": "17285178", "title": "", "text": "— is significantly circumscribed. In a civil contempt proceeding, like the present case, a contempt holding will fall unless the order violated by the contemnor is “clear and unambiguous,” the proof of non-compliance is “clear and convincing,” and the contemnor was not reasonably diligent in attempting to comply. Local 580, 925 F.2d at 594; New York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1351 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990). In light of these restraints on the district court’s contempt power, this Court’s review of a contempt order for abuse of discretion is more rigorous than would be the case in other situations in which abuse-of-discretion review is conducted. Bearing these standards in mind, we proceed to address Ciccone’s contentions. 2. Knowing and Improper Association The District Court found that Ciccone violated Paragraph 2(a) of the consent decree by knowingly and improperly associating with organized crime figures and individuals barred from participation in union affairs. On appeal, the government and Ciccone advance widely divergent interpretations of the decree’s language. The government reads the prohibition against knowing and improper associations with persons of prohibited status as equivalent to the language in a consent decree involving the Teamsters, which barred the signatories from “knowingly associating” with individuals of prohibited status. The meaning of “knowingly associating” in the Teamsters decree has been litigated on several occasions and is now well established. See United States v. International Bhd. of Teamsters (DiGirlamo), 19 F.3d 816, 822 (2d Cir.), cert. denied, -— U.S. -, 115 S.Ct. 199, 130 L.Ed.2d 130 (1994); United States v. International Bhd. of Teamsters (Adelstein), 998 F.2d 120, 125 (2d Cir.1993); United States v. International Bhd. of Teamsters (Cozza), 764 F.Supp. 797, 801-02 (S.D.N.Y.1991), aff'd, 956 F.2d 1161 (2d Cir.1992). Under the decisions interpreting the Teamsters consent decree, truly incidental contacts with prohibited individuals, such as encounters at weddings and funerals, are permitted, Teamsters (Cozza), 764 F.Supp. at 813 (decision of independent administrator, affirmed by district court), as are such contacts as are “required in [one’s] official capacity.” Teamsters (Adelstein), 998" }, { "docid": "13230139", "title": "", "text": "U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983); United States v. Hilton Hotels Corp., 467 F.2d 1000, 1004-07 (9th Cir.1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 938, 35 L.Ed.2d 256 (1973). We see no reason to establish higher standards of proof for corporate violations of antitrust consent decrees than for violations of the antitrust laws themselves. In attempting to introduce evidence of its “reasonable diligence,” Fox seeks to import an element of civil contempt into the criminal context. In Powell v. Ward, 643 F.2d 924, 931 (2d Cir.), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981), upon which Fox relies, we held that prison administrators charged with civil contempt for failure to comply with a court order could not be found liable unless, in addition to clear and convincing proof of violation of an unambiguous order, it is also shown that the alleged contemnors had not been reasonably diligent and energetic in attempting to accomplish what the court had ordered. Even if this non-diligence element applies beyond the context of public officials charged with civil contempt for decree violations occurring in the course of discharging their institutional responsibilities, this element has no application to criminal contempt. The purpose of civil contempt is remedial and coercive; it thus makes sense to say, at least in some contexts, that if a defendant is doing all it can to comply with a court order, there may be little, if any, coercive purpose that civil contempt sanctions could achieve. Criminal contempt, however, serves the much different purpose of vindicating the court’s authority. See United States v. United Mine Workers, 330 U.S. 258, 303, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947). It serves to punish individuals or corporations for past violations of a court order. Because of this different purpose, the focus of criminal contempt is on the willfulness of the violation. Once it is determined that the corporate agent willfully violated a clear contempt order, the corporation must bear responsibility. It is this rule of vicarious liability that encourages companies to establish compliance programs. Were we to" }, { "docid": "7593185", "title": "", "text": "the fundamental purposes of bankruptcy law: to give the debtor a fresh start. See In re Bogdanovich, 292 F.3d 104, 107 (2d Cir.2002) (“Congress made it a central purpose of the bankruptcy code to give debtors a fresh start in life and a clear field for future effort unburdened by the existence of the old debts.”) “There is no serious question that a violation of the discharge provided in § 524(a)(2) is punishable by contempt.” In re Nassoko, 405 B.R. 515, 520 (Bankr.S.D.N.Y.2009) (citations omitted). Here, the Debtor seeks sanctions for civil contempt, which function “to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.” In re Torres, 367 B.R. 478, 490 (Bankr.S.D.N.Y.2007) (quoting Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986)). “[DJetermining whether a party may be held liable for civil contempt is a two part inquiry: (1) did the party know of the lawful order of the court, and (2) did the defendant comply with it.” In re McKenzie-Gilyard, 388 B.R. 474, 481 (Bankr.E.D.N.Y.2007) (quoting In re Puller, 2007 WL 1811209 at *3 (Bankr.N.D.W.Va. Jun. 20, 2007)). Thus, sanctions for civil contempt may be awarded where a party knowingly violated the discharge injunction. See In re DiGeronimo, 354 B.R. 625, 642 (Bankr.E.D.N.Y.2006) (citations omitted) (holding that a violation of the discharge injunction is willful where “the creditor (1) knew that the discharge had issued, and (2) intended the actions which violated the discharge injunction.”). There can be no question that Oren knew that the Debtor’s discharge had been issued, given his active role in Nicholas’s bankruptcy, his receipt of payment under Nicholas’s plan, and his receipt of notice of the discharge. Oren has never disputed that he was aware of Nicholas’s discharge, and his continuation of the action against Nicholas, even after Nicholas moved to reopen this bankruptcy case to seek to hold Oren in contempt, removes any doubt that Oren was aware of the discharge, and that his actions in pursuing discharged claims against Nicholas were" }, { "docid": "10558777", "title": "", "text": "of facilities performing abortions: May 6, 1988, October 29, 1988, January 13, 1989, and January 14, 1989. Plaintiffs seek contempt sanctions against the following organizations and persons: Defendants: Operation Rescue Randall Terry (“Terry”) Thomas Herlihy (“Herlihy”) Respondents: Bistate Operation Rescue Network (“B.O.R.N.”) Jesse Lee (“Lee”) Joseph Foreman (“Foreman”) Michael McMonagle (“McMonagle”) Jeff White (“White”) Michael La Penna (“La Penna”) Florence Talluto (“Talluto”) Adelle Nathanson (“A. Nathanson”) Bernard Nathanson (“B. Nathanson”) Robert Pearson (“Pearson”) No facts were disputed by any of defendants, nor by respondents B.O.R.N., Lee, Foreman, McMonagle, White, La Penna and Talluto. Respondents B. Nathan-son, A. Nathanson and Pearson, disputed the alleged facts concerning their knowledge of the Court’s orders and their involvement in blocking access to clinics in concert with defendants. The Court commenced a hearing regarding the disputed facts on August 9, 1989. On August 9, 10, 15 and 16, 1989, the Court heard testimony and received evidence concerning the alleged roles these three respondents played in blocking access to clinics in concert with defendants and in violation of the Court’s orders. The Court will first discuss the appropriateness of imposing contempt sanctions against defendants and the objections they raise to these contempt proceedings. Second, the Court will examine the appropriateness of imposing contempt sanctions against the various respondents. Third, the Court will consider the plaintiffs’ request for attorneys’ fees and costs associated with this application. Finally, the Court will address the motions for sanctions against attorneys Washburn and Hale. DISCUSSION The Court of Appeals, in its decision in this case, clearly outlined the applicable law governing civil contempt proceedings. A court’s inherent power to hold a party in civil contempt may be exercised only when (1) the order the party allegedly failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the party has not diligently attempted in a reasonable manner to comply. 886 F.2d at 1351; E.E.O.C. v. Local 638, Local 28 of the Sheet Metal Workers’ Int’l Ass’n, 753 F.2d 1172, 1178 (2d Cir.1985) aff'd, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986)." }, { "docid": "23059316", "title": "", "text": "to determine how many corrective stickers each needed. New Line was afforded thirty days in which to cure its noncompliance, at which point King could conduct another market investigation. If the district court determined, based on this investigation, that New Line had not substantially complied with the aforementioned requirements, it would continue to impose the $10,000 per day fine payable to King and “order a complete recall of all videocassettes and laser discs of the Lawnmower Man in the possession of all retailers and distributors.” The district court also awarded King attorneys’ fees. The district court stayed the 1995 Order pending appeal, which we granted on an expedited basis. New Line now appeals from both the 1994 Order and the 1995 Order. DISCUSSION In analyzing a contempt order, we recognize that such an order is a “potent weapon,” International Longshoremen’s Ass’n v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967), to which courts should not resort “where there is a fair ground of doubt as to the wrongfulness of the defendant’s conduct,” California Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618, 5 S.Ct. 618, 622, 28 L.Ed. 1106 (1885). A contempt order is warranted only where the moving party establishes by clear and convincing evidence that the alleged contemnor violated the district court’s edict. See Hart Schaffner & Marx v. Alexander’s Dep’t Stores, Inc., 341 F.2d 101, 102 (2d Cir.1965) (per curiam). More specifically, a movant must establish that (1) the order the contemnor failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable manner. See New York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1351 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990). A clear and unambiguous order is one that leaves “no uncertainty in the minds of those to whom it is addressed,” Hess v. New Jersey Transit Rail Operations, Inc., 846 F.2d 114, 116 (2d Cir.1988), who “must" }, { "docid": "11097690", "title": "", "text": "convincing,” ’ and [they] have not ‘been reasonably diligent and energetic in attempting to accomplish what was ordered.’ ” EEOC v. Local 638 ... Local 28 of the Sheet Metal Workers’Int’l Ass’n, 753 F.2d 1172, 1178 (2d Cir.1985), aff'd, 478 U.S. 421, 106 5.Ct. 3019, 92 L.Ed.2d 344 (1986) (citations omitted). EEOC v. Local 580, Int’l Ass’n of Bridge, Structural & Ornamental Ironworkers, 925 F.2d 588, 594 (2d Cir.1991); see also Hess v. New Jersey Transit Rail Operations, Inc., 846 F.2d 114, 116 (2d Cir.1988); Powell v. Ward, 643 F.2d 924, 931 (2d Cir.) (per curiam), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981). No “clear and convincing” proof of noncompliance with a “clear and unambiguous” order has been provided in this case. We therefore reverse. Conclusion The order of contempt is reversed. . The United States contends that the 1974 Plan was incorporated by reference into paragraph V because the plan was developed in accordance with consulting agreements referenced in that paragraph. The reference in paragraph V to studies leading to future \"long range plans for solid waste disposal for Westchester County\" cannot plausibly be read as incorporating by reference the already existing 1974 Plan. . The County points, for example, to diagrams of waste flows attached to the 1974 Plan that included dotted lines and question marks with respect to privately collected waste." }, { "docid": "9960217", "title": "", "text": "OPINION AND ORDER LYNCH, District Judge. In this action for copyright infringement, plaintiff Shady Records, Inc. (“Shady”) argues that defendants, various corporations and individuals associated with the magazine The Source (“Source”), infringed its copyright in certain songs allegedly created by the performer Eminem by posting recordings of those songs and printed versions of their lyrics on the magazine’s website. On December 15, 2003, this Court entered a temporary restraining order prohibiting Source from “[reproducing, distributing or publicly performing or in any way making available any hard copy or electronic copy” of the songs. Shady now moves for an order holding defendants in contempt of that order. The Court held an evidentiary hearing on that motion on April 5, 2004, after which the parties submitted written arguments. Having considered the evidence presented at the hearing and the arguments of the parties, the Court will grant the motion. LEGAL STANDARDS “It is well settled in this circuit that a party may be held in civil contempt for failure to comply with an order of the court if the order being enforced is clear and unambiguous, the proof of noncompliance is clear and convincing, and the defendants have not been reasonably diligent and energetic in attempting to accomplish what was ordered. It is not necessary to show that defendants disobeyed the district court’s orders willfully.” EEOC v. Local 638, Local 28 of Sheet Metal Workers’ Int’l Ass’n, 753 F.2d 1172, 1178 (2d Cir.1985), aff'd, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986) (citations and internal quotation marks omitted). Shady moves for an order of civil contempt. Civil contempt is intended either to “coerce the contemnor into future compliance with the court’s order or to compensate the complainant for losses resulting from the contemnor’s past noncompliance.” New York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1352 (2d Cir.1989); see also Hess v. New Jersey Transit Rail Operations, Inc., 846 F.2d 114, 115 (2d Cir.1988) (“If the sentence of contempt is imposed for the coercive or remedial purpose of compelling obedience to a court order and providing compensation or relief" }, { "docid": "9960218", "title": "", "text": "the order being enforced is clear and unambiguous, the proof of noncompliance is clear and convincing, and the defendants have not been reasonably diligent and energetic in attempting to accomplish what was ordered. It is not necessary to show that defendants disobeyed the district court’s orders willfully.” EEOC v. Local 638, Local 28 of Sheet Metal Workers’ Int’l Ass’n, 753 F.2d 1172, 1178 (2d Cir.1985), aff'd, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986) (citations and internal quotation marks omitted). Shady moves for an order of civil contempt. Civil contempt is intended either to “coerce the contemnor into future compliance with the court’s order or to compensate the complainant for losses resulting from the contemnor’s past noncompliance.” New York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1352 (2d Cir.1989); see also Hess v. New Jersey Transit Rail Operations, Inc., 846 F.2d 114, 115 (2d Cir.1988) (“If the sentence of contempt is imposed for the coercive or remedial purpose of compelling obedience to a court order and providing compensation or relief to the complaining party, the contempt is civil in nature.”). Profits derived by the contemnor from violating the order may be “an equivalent or a substitute for legal damages, when damages have not been shown, and are recoverable not by way of punishment but to insure full compensation to the party injured.” Manhattan Industries, Inc. v. Sweater Bee by Banff, Ltd., 885 F.2d 1, 6 (2d Cir.1989), citing Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 455-56, 52 S.Ct. 238, 76 L.Ed. 389 (1932) (internal quotation marks omitted). In this case, there is no need for a coercive order, as the parties agree that Source is now in compliance with the Court’s order and has been since January 6, 2004, shortly after Shady complained to it of the matters that are the subject of this motion, before the motion itself was even filed. Nor does Shady claim that it suffered damages from the exploitation of its intellectual property, or that Source derived any profits from the alleged violation. Shady does claim that it should" }, { "docid": "15882701", "title": "", "text": "in a court order because “breach of the agreement would be a breach of the order”); American Town Center v. Hall 83 Assocs., 912 F.2d 104, 110 (6th Cir.1990) (reaffirming the well-established rule that,-if a court has jurisdiction over the substance of a litigation, it has jurisdiction to enforce the judgment it renders). Thus, the directives in the district court’s January and May 1999 orders may be upheld to the extent that they are consistent with the terms of any order issued by the district court prior to dismissal of McAlpin’s case. McAlpin argues that the district court erred in holding her in contempt of its 1997 orders directing the return of confidential documents to AOC because those orders were directed only to Gahafer, and that “even if the orders could be artfully construed to imply that [she] was required to perform a specific act,” the defendants failed to establish “by clear and convincing evidence that [she] violated any of the[] orders.” Appellants Br. at 43; see also EEOC v. Local 638, Local 28 of Sheet Metal Workers’ Int’l Ass’n, 753 F.2d 1172, 1178 (2d Cir.1985), aff'd. 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986) (holding that a party may only be held in contempt of a court order if (1) the order clearly and unambiguously imposed an obligation on the party; (2) proof of the party’s noncompliance with the order was clear and convincing; and (3) the party did not diligently attempt to comply with the order). Although the district court’s 1997 orders do not specifically refer to McAlpin, it is possible to construe them, and in particular the portion of the March 10, 1997, order providing that “any copies made [of confidential AOC documents] shall also be returned to the defendants,” as binding all parties to the litigation, not just Gahafer. See Lucille v. City of Chicago, 31 F.3d 546, 548-49 (7th Cir.1994) (stating that a federal court will enforce or retain jurisdiction over a settlement agreement only to the extent that the court’s judgment expressly or implicitly incorporates the terms of the agreement). However, because" }, { "docid": "15882702", "title": "", "text": "Sheet Metal Workers’ Int’l Ass’n, 753 F.2d 1172, 1178 (2d Cir.1985), aff'd. 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986) (holding that a party may only be held in contempt of a court order if (1) the order clearly and unambiguously imposed an obligation on the party; (2) proof of the party’s noncompliance with the order was clear and convincing; and (3) the party did not diligently attempt to comply with the order). Although the district court’s 1997 orders do not specifically refer to McAlpin, it is possible to construe them, and in particular the portion of the March 10, 1997, order providing that “any copies made [of confidential AOC documents] shall also be returned to the defendants,” as binding all parties to the litigation, not just Gahafer. See Lucille v. City of Chicago, 31 F.3d 546, 548-49 (7th Cir.1994) (stating that a federal court will enforce or retain jurisdiction over a settlement agreement only to the extent that the court’s judgment expressly or implicitly incorporates the terms of the agreement). However, because “there are few persons in a better position to understand the meaning of an order ... than the district judge who ordered it,” we will not decide whether the March 1997 mandate binds McAlpin, but will instead remand the issue to the district court for a determination concerning the scope of the order. Scelsa v. City Univ. of New York, 76 F.3d 37, 42 (2d Cir.1996); cf Neuberg, 123 F.3d at 955 (noting that, “as the judge who had presided over the waning years of [the underlying] lawsuit,” the district judge was in the “best position to evaluate the settlement agreement ... and whether the Neubergs were entitled to [relief thereunder]”). Ill The Supreme Court’s opinion in Kokko-nen precludes the district court from enforcing portions of the Settlement Agreement that were not expressly incorporated in either its dismissal order or in its prior orders against the parties. The defendants’ proper remedy for these violations lies in a separate action for breach of the Settlement Agreement, in which suit the defendants could also request a preliminary" }, { "docid": "17285176", "title": "", "text": "Int’l Ass’n of Bridge Ironworkers, Joint Apprentice-Journeyman Educ. Fund, 925 F.2d 588, 594 (2d Cir.1991); Drywall Tapers, Local 1971 v. Local 580, Operative Plasterers Int’l Ass’n, 889 F.2d 389, 395 (2d Cir.1989), cert. denied, 494 U.S. 1030, 110 S.Ct. 1478, 108 L.Ed.2d 615 (1990). The court’s ultimate finding of contempt is reviewed for abuse of discretion. Oral-B Lab. v. Mi-Lor Corp., 810 F.2d 20, 23 (2d Cir.1987). In reviewing the District Court’s finding of contempt under the abuse of discretion standard, we bear in mind the circumstances in which this appeal arises. A court’s discretion is not unbounded, and the scope of the court’s discretion varies according to the issue before it. As to some matters relating to the management of proceedings before the court, such as the introduction of evidence and the regulation of the course and scope of examination of witnesses, a district court’s discretion is broad indeed, see United States v. Wong, 40 F.3d 1347, 1378 (2d Cir.1994); Sage Realty v. Insurance Co. of N. Am., 34 F.3d 124, 128 (2d Cir.1994); United States v. Beverly, 5 F.3d 633, 638 (2d Cir.1993), and we have suggested that where such issues arise the district court’s rulings will be affirmed unless they amount to “manifest error.” Sage Realty, 34 F.3d at 128. The contempt power is different. First, unlike the general authority to govern the course of a court proceeding, the contempt power may be used to regulate a party’s out-of-court behavior, as it was in the present case. See generally International Union, United Mine Workers v. Bagwell, — U.S. -, -, 114 S.Ct. 2552, 2560, 129 L.Ed.2d 642 (1994) (distinguishing out-of-court contempts from contempts that occur during the course of a judicial proceeding). Second, even when it is applied to in-court behavior, the contempt power is among the most formidable weapons in the court’s arse nal, and one with significant potential for harm if it is wielded imprudently. Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir.1991). In recognition of these factors, the district court’s power to hold a party in contempt — whether civil or criminal" }, { "docid": "11097689", "title": "", "text": "be read to establish an anticipation, prior to the execution of the Decree, that the County would endeavor to address the entire solid waste problem in Westchester County, although there is ambiguity regarding waste collected by private carters, and at least some countervailing evidence on that issue. In any event, given the total context in which the parties agreed to the Decree, this evidence does not suffice to convert the County’s commitment “to devise long range plans for solid waste disposal for West-chester County” into an undertaking to dispose of all such waste without regard to the practical and legal feasibility of doing so in the light of future, and necessarily unpredictable, developments regarding the financing of the Charles Point facility and the willingness of municipalities and private carters to commit to that facility. 4. Standards for Contempt. As we have stated, parties may be held in civil contempt for “failure to comply with an order of the court if the order being enforced is ‘clear and unambiguous, the proof of noncompliance is “clear and convincing,” ’ and [they] have not ‘been reasonably diligent and energetic in attempting to accomplish what was ordered.’ ” EEOC v. Local 638 ... Local 28 of the Sheet Metal Workers’Int’l Ass’n, 753 F.2d 1172, 1178 (2d Cir.1985), aff'd, 478 U.S. 421, 106 5.Ct. 3019, 92 L.Ed.2d 344 (1986) (citations omitted). EEOC v. Local 580, Int’l Ass’n of Bridge, Structural & Ornamental Ironworkers, 925 F.2d 588, 594 (2d Cir.1991); see also Hess v. New Jersey Transit Rail Operations, Inc., 846 F.2d 114, 116 (2d Cir.1988); Powell v. Ward, 643 F.2d 924, 931 (2d Cir.) (per curiam), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981). No “clear and convincing” proof of noncompliance with a “clear and unambiguous” order has been provided in this case. We therefore reverse. Conclusion The order of contempt is reversed. . The United States contends that the 1974 Plan was incorporated by reference into paragraph V because the plan was developed in accordance with consulting agreements referenced in that paragraph. The reference in paragraph V to studies leading" }, { "docid": "13230138", "title": "", "text": "record amply demonstrates that Goldstein, a managerial employee of Fox, willfully violated the consent decree while acting within the scope of her authority. Fox argues, however, that even if its branch manager willfully violated the decree, any violation by the corporation was not willful in view of the extensive program Fox adopted to encourage its employees to comply with the decree. At trial, Fox sought to introduce evidence regarding its compliance program, but Judge Palmieri refused to admit it. We agree with the District Court that Fox’s compliance program, however extensive, does not immunize the corporation from liability when its employees, acting within the scope of their authority, fail to comply with the law and the consent decree. It is settled law that a corporation may be held criminally responsible for antitrust violations committed by its employees or agents acting within the scope of their authority. See United States v. Koppers Co., 652 F.2d at 298; see also United States v. Basic Construction Co., 711 F.2d 570, 573 (4th Cir.) (per curiam), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983); United States v. Hilton Hotels Corp., 467 F.2d 1000, 1004-07 (9th Cir.1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 938, 35 L.Ed.2d 256 (1973). We see no reason to establish higher standards of proof for corporate violations of antitrust consent decrees than for violations of the antitrust laws themselves. In attempting to introduce evidence of its “reasonable diligence,” Fox seeks to import an element of civil contempt into the criminal context. In Powell v. Ward, 643 F.2d 924, 931 (2d Cir.), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981), upon which Fox relies, we held that prison administrators charged with civil contempt for failure to comply with a court order could not be found liable unless, in addition to clear and convincing proof of violation of an unambiguous order, it is also shown that the alleged contemnors had not been reasonably diligent and energetic in attempting to accomplish what the court had ordered. Even if this non-diligence element applies beyond the context" }, { "docid": "10558778", "title": "", "text": "The Court will first discuss the appropriateness of imposing contempt sanctions against defendants and the objections they raise to these contempt proceedings. Second, the Court will examine the appropriateness of imposing contempt sanctions against the various respondents. Third, the Court will consider the plaintiffs’ request for attorneys’ fees and costs associated with this application. Finally, the Court will address the motions for sanctions against attorneys Washburn and Hale. DISCUSSION The Court of Appeals, in its decision in this case, clearly outlined the applicable law governing civil contempt proceedings. A court’s inherent power to hold a party in civil contempt may be exercised only when (1) the order the party allegedly failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the party has not diligently attempted in a reasonable manner to comply. 886 F.2d at 1351; E.E.O.C. v. Local 638, Local 28 of the Sheet Metal Workers’ Int’l Ass’n, 753 F.2d 1172, 1178 (2d Cir.1985) aff'd, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986). It is not necessary to show that the party disobeyed the court’s order willfully. E.E.O.C. v. Local 638, Local 28 of the Sheet Metal Workers’ Int’l Ass’n, supra, 753 F.2d at 1178. A. Defendants The Court of Appeals, in upholding this Court’s determination that Operation Rescue and Terry had violated the May 4 Order, rejected defendants’ contention that the order was impermissibly vague. The [May 4 Order] was sufficiently clear as to what acts were proscribed. It prohibited trespass and obstruction that had the effect of blocking “ingress to and egress from any facility at which abortions are performed” within a specific geographic area. It barred physical abuse and tortious harassment of patients and employees. These prohibitions were balanced by language expressly permitting sidewalk counseling in a reasonably quiet and nonthreatening manner. [citation omitted] The conduct that lay between that which was prohibited and that which was permitted was sufficiently clear for defendants to ascertain precisely what they could and could not do. Therefore, the order was specific enough to serve as the foundation for" }, { "docid": "17285175", "title": "", "text": "barred from involvement in union affairs, and further ordered Ciccone not to associate with any member, officer, or employee of the ILA or any of its affiliates. In addition, the Court ordered Ciccone not to frequent certain locations associated with either the ILA or organized crime. Finally, the Court ordered Ciccone to withdraw his application for the window period pension. The order stated that future violations would “subject Ciccone to escalating fines or imprisonment.” From this order, and from the order concluding that Ciccone had violated the consent decree, Ciccone now appeals. DISCUSSION 1. Standard of Review We begin by addressing the standard that we apply in reviewing the District Court’s conclusions. This Court has set forth an array of standards that are relevant to different issues relating to consent decrees. The interpretation of the terms of the consent decree is subject to de novo review. United States v. O’Rourke, 948 F.2d 180, 186 (2d Cir.1991). The District Court’s factual findings are accepted unless they are shown to be clearly erroneous. EEOC v. Local 580, Int’l Ass’n of Bridge Ironworkers, Joint Apprentice-Journeyman Educ. Fund, 925 F.2d 588, 594 (2d Cir.1991); Drywall Tapers, Local 1971 v. Local 580, Operative Plasterers Int’l Ass’n, 889 F.2d 389, 395 (2d Cir.1989), cert. denied, 494 U.S. 1030, 110 S.Ct. 1478, 108 L.Ed.2d 615 (1990). The court’s ultimate finding of contempt is reviewed for abuse of discretion. Oral-B Lab. v. Mi-Lor Corp., 810 F.2d 20, 23 (2d Cir.1987). In reviewing the District Court’s finding of contempt under the abuse of discretion standard, we bear in mind the circumstances in which this appeal arises. A court’s discretion is not unbounded, and the scope of the court’s discretion varies according to the issue before it. As to some matters relating to the management of proceedings before the court, such as the introduction of evidence and the regulation of the course and scope of examination of witnesses, a district court’s discretion is broad indeed, see United States v. Wong, 40 F.3d 1347, 1378 (2d Cir.1994); Sage Realty v. Insurance Co. of N. Am., 34 F.3d 124, 128 (2d Cir.1994);" }, { "docid": "17285177", "title": "", "text": "United States v. Beverly, 5 F.3d 633, 638 (2d Cir.1993), and we have suggested that where such issues arise the district court’s rulings will be affirmed unless they amount to “manifest error.” Sage Realty, 34 F.3d at 128. The contempt power is different. First, unlike the general authority to govern the course of a court proceeding, the contempt power may be used to regulate a party’s out-of-court behavior, as it was in the present case. See generally International Union, United Mine Workers v. Bagwell, — U.S. -, -, 114 S.Ct. 2552, 2560, 129 L.Ed.2d 642 (1994) (distinguishing out-of-court contempts from contempts that occur during the course of a judicial proceeding). Second, even when it is applied to in-court behavior, the contempt power is among the most formidable weapons in the court’s arse nal, and one with significant potential for harm if it is wielded imprudently. Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir.1991). In recognition of these factors, the district court’s power to hold a party in contempt — whether civil or criminal — is significantly circumscribed. In a civil contempt proceeding, like the present case, a contempt holding will fall unless the order violated by the contemnor is “clear and unambiguous,” the proof of non-compliance is “clear and convincing,” and the contemnor was not reasonably diligent in attempting to comply. Local 580, 925 F.2d at 594; New York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1351 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990). In light of these restraints on the district court’s contempt power, this Court’s review of a contempt order for abuse of discretion is more rigorous than would be the case in other situations in which abuse-of-discretion review is conducted. Bearing these standards in mind, we proceed to address Ciccone’s contentions. 2. Knowing and Improper Association The District Court found that Ciccone violated Paragraph 2(a) of the consent decree by knowingly and improperly associating with organized crime figures and individuals barred from participation in union affairs. On appeal, the government and Ciccone advance widely divergent" }, { "docid": "23059317", "title": "", "text": "wrongfulness of the defendant’s conduct,” California Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618, 5 S.Ct. 618, 622, 28 L.Ed. 1106 (1885). A contempt order is warranted only where the moving party establishes by clear and convincing evidence that the alleged contemnor violated the district court’s edict. See Hart Schaffner & Marx v. Alexander’s Dep’t Stores, Inc., 341 F.2d 101, 102 (2d Cir.1965) (per curiam). More specifically, a movant must establish that (1) the order the contemnor failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable manner. See New York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1351 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990). A clear and unambiguous order is one that leaves “no uncertainty in the minds of those to whom it is addressed,” Hess v. New Jersey Transit Rail Operations, Inc., 846 F.2d 114, 116 (2d Cir.1988), who “must be able to ascertain from the four corners of the order precisely what acts are forbidden,” see Drywall Tapers, Local 1971 v. Local 530, Operative Plasterers Int’l Ass’n, 889 F.2d 389, 395 (2d Cir.1989), cert. denied, 494 U.S. 1030, 110 S.Ct. 1478, 108 L.Ed.2d 615 (1990). 1. Propriety of the 1994 Order Although review of the district court’s findings of fact is for clear error, see EEOC v. Local 580, Int’l Ass’n of Bridge, Structural and Ornamental Ironworkers, 925 F.2d 588, 594 (2d Cir.1991), we review its interpretation of the Decree de novo, see United States v. Local 1804-1, Int’l Longshoremen’s Ass’n, 44 F.3d 1091, 1095 (2d Cir.1995). A district court may not “expand or contract the agreement of the parties as set forth in the consent decree, and the explicit language of the decree is given great weight.” Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir.1985) (citation omitted). Because a decree is the sole source of the parties’ rights, see Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S." }, { "docid": "10731332", "title": "", "text": "proof of claim, Green Tree does not contest that it was in contempt. Indeed, to find contempt, the bankruptcy court needed only to find that Green Tree was aware of the discharge injunction and intended the action that violated it, neither of which is disputed. See Hardy, 97 F.3d at 1390. Instead, the parties dispute the nature of the non-compensatory sanctions and whether they were appropriate in the light of Green Tree’s withdrawal of its proof of claim prior to the adjudication of contempt. We conclude that these sanctions were punitive in nature and that the bankruptcy court erred by failing to afford Green Tree the due process that imposing such sanctions requires. We first address the nature of the non-compensatory sanctions. The line between civil and criminal contempt sanctions is not always clear, in part because “conclusions about the civil or criminal nature of a contempt sanction are properly drawn[ ] not from the subjective intent of ... laws and [ ] eourts[ ] but from an examination of the character of the relief itself.” Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (citation and internal quotation marks omitted). “Sanctions in civil contempt proceedings may be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.” F.T.C. v. Leshin, 719 F.3d 1227, 1231 (11th Cir.2013) (alteration and internal quotation marks omitted) (quoting Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986)), cert. denied, — U.S.-, 134 S.Ct. 901, 187 L.Ed.2d 776 (2014). The bankruptcy court and district court characterized the non-compensatory sanctions as coercive sanctions, the sole purpose of which is typically to bring an end to an ongoing contempt. For this reason, they “cannot be any greater than necessary to ensure such compliance and may not be so excessive as to be punitive in nature.” Jove, 92 F.3d at 1558 (internal quotation marks omitted). Punitive sanctions, by contrast," }, { "docid": "13111295", "title": "", "text": "violated the Act and the 1994 consent judgment. Ill Denial of Petition for Contempt Affirmed We turn now to whether that violation subjects Gotham to being held in contempt. A federal court has the authority to punish contempt of a consent decree. United States v. Int’l Bhd. of Teamsters, 899 F.2d 143, 146 (2d Cir.1990). However, the judicial power of contempt is circumscribed and “[t]he failure to meet the strict requirements of an order does not necessarily subject a party to a holding of contempt.” Dunn, 47 F.3d at 490. A party may be held in civil contempt only where a plaintiff establishes (1) the decree was clear and unambiguous, and (2) the proof of non-compliance is clear and convincing. Id. Although the defendant’s conduct need not be willful, a plaintiff must also prove that (3) the defendant has not been reasonably diligent and energetic in attempting to comply. City of New York v. Local 28, Sheet Metal Workers’ Int’l Ass’n, 170 F.3d 279, 283 (2d Cir.1999); Dunn, 47 F.3d at 490; see also Levin v. Tiber Holding Corp., 277 F.3d 243, 250 (2d Cir.2002) (noting plaintiffs burden of proof). While we disagreed with the district court’s determination that the unauthorized work was not compensable as overtime, we now affirm its alternative holding that the Secretary did not carry her burden to prove contempt. A. The Decree Was Ambiguous with Respect to Gotham’s Conduct The Supreme Court has cautioned that contempt is a powerful weapon under any circumstance and, when founded on a decree that the defendant could not comprehend, it can be a ruinous one. Int’l Longshoremen’s Ass’n v. Phil. Marine Trade Ass’n, 389 U.S. 64, 76, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967). To ensure fair notice to the defendant, the decree underlying contempt must be sufficiently clear to allow the party to whom it is addressed to ascertain precisely what it can and cannot do. King v. Allied Vision Ltd., 65 F.3d 1051, 1058 (2d Cir.1995); N.Y. State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1351-52 (2d Cir.1989); see also Fed. R.Civ.P. 65(d) (requiring injunctive" }, { "docid": "23059318", "title": "", "text": "be able to ascertain from the four corners of the order precisely what acts are forbidden,” see Drywall Tapers, Local 1971 v. Local 530, Operative Plasterers Int’l Ass’n, 889 F.2d 389, 395 (2d Cir.1989), cert. denied, 494 U.S. 1030, 110 S.Ct. 1478, 108 L.Ed.2d 615 (1990). 1. Propriety of the 1994 Order Although review of the district court’s findings of fact is for clear error, see EEOC v. Local 580, Int’l Ass’n of Bridge, Structural and Ornamental Ironworkers, 925 F.2d 588, 594 (2d Cir.1991), we review its interpretation of the Decree de novo, see United States v. Local 1804-1, Int’l Longshoremen’s Ass’n, 44 F.3d 1091, 1095 (2d Cir.1995). A district court may not “expand or contract the agreement of the parties as set forth in the consent decree, and the explicit language of the decree is given great weight.” Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir.1985) (citation omitted). Because a decree is the sole source of the parties’ rights, see Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 522, 106 S.Ct. 3063, 3075, 92 L.Ed.2d 405 (1986), a district court may not impose obligations on a party that are not unambiguously mandated by the decree itself, see United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). At the same time, however, because a consent decree is a court-approved order, a district court has broad equitable discretion to enforce the obligations of the decree. See Local 580, 925 F.2d at 593. Accordingly, we must invalidate those portions of the contempt orders, if any, that were inconsistent with or beyond the scope of the Decree. New Line claims that the 1994 Order imposed several obligations beyond the scope of the Decree. Although we will address each of New Line’s arguments, several of which possess substantial merit, we conclude that the district court in its 1994 Order did not err in finding New Line in contempt of ¶¶ 2, 4, and 6 of the Decree. a. New Line’s Noncompliance First, the district court correctly criticized New" } ]

[ { "docid": "2685357", "title": "", "text": "to exercise his authority to grant equitable relief as the veteran requests. Zimick, 11 Vet.App. at 50-51. Even if the Secretary were inclined to grant the veteran equitable relief, he would not lawfully be permitted to do so. Because “the remedy sought is a monetary award against the U.S. government, and particularly where Congress has enacted an intricate and all-encompassing statutory scheme, such expenditures must be specifically authorized by statute.” Malone v. Gober, 10 Vet.App. 539, 542 (1997); see also OPM v. Richmond, 496 U.S. 414, 424, 110 S.Ct. 2465, 110 L.Ed.2d 387 (“[T]he payment of money from the [Federal] Treasury must be authorized by statute.”). Congress has enacted a comprehensive statutory scheme for the payment of veterans benefits. In this case, there is no statute or regulation that authorizes the Secretary to pay interest on past due benefits under any circumstances, to include the exercise of his equitable powers. The Court finds that the recent enactment of the VCAA, referenced supra, does not affect the issue decided in this case concerning whether a federal statute allows the payment of interest on past due benefits. Therefore, there is no reason to consider the VCAA in deciding this case. III. CONCLUSION After consideration of the appellant’s brief, the Secretary’s brief, and the record, the Court holds that the appellant has not demonstrated that the Board committed either legal or factual error which would warrant reversal or remand with respect to the payment on interest on the veteran’s past due claims. Section 503(a) does not expressly authorize the Secretary to pay interest on past due claims; therefore, the veteran is not entitled such a payment. The Court is also satisfied that the Board decision fulfills the “reasons or bases” requirements of 38 U.S.C. § 7104(d)(1). Accordingly, the December 16, 1997, Board decision is AFFIRMED." } ]

[ { "docid": "16967785", "title": "", "text": "and irrational” to treat wartime veterans differently than non-wartime veterans for the purpose of awarding pension benefits and to treat veterans who served in the Republic of Vietnam differently from those who served elsewhere for the purpose of defining wartime service.' III. Upon consideration of the record and the briefs of the parties, the BVA decision is VACATED in part, and the matter of the appellant’s claim for an increased rating for residuals of his gunshot wound is REMANDED for adjudication under the rating code most favorable to the appellant. See Kamas, supra. With respect to the appellant’s claim for non-service-connected pension benefits, the Court holds that the appellant has not demonstrated that the Board committed either factual or legal error which would warrant reversal or remand. Gilbert v. Derwinski, 1 Vet.App. 49 (1990); see also Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Danville Plywood Corp. v. United States, 899 F.2d 3 (Fed.Cir.1990). The Court also is satisfied that the BVA decision meets the “reasons or bases” requirements of 38 U.S.C. § 7104(d)(1). See Gilbert, supra. Accordingly, the portion of the Board’s decision denying the appellant’s claim for pension benefits is AFFIRMED." }, { "docid": "2712574", "title": "", "text": "the Treasury ... for collection” pursuant to statute. Included in his response was a motion requesting that the Court stay proceedings for 60 days to permit the “formulation of the Secretary’s position” on whether a stay or injunction should issue. In adjudicating claims, the Board is required to base its decision upon all evidence and material of record and to consider all applicable provisions of law and regulation. See 38 U.S.C. § 7104(a); see also 38 C.F.R. § 3.303(a) (2000). The Board must provide an adequate written statement of the reasons or bases for its findings and conclusions on “all material issues of fact or law presented on the record.” 38 U.S.C. § 7104(d)(1); see also Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat.2096 (2000), was enacted. Among other things, the VCAA eliminated the well-grounded-claim requirement and modified the Secretary’s duties to notify and assist claimants. See generally VCAA, §§ 3, 4, 7. During oral argument, which was held on March 15, 2001, the appellant’s counsel referenced the VCAA and argued that the appellant was entitled to more assistance than VA afforded her. The Board’s decision here, issued after the November 9, 2000, enactment of the VCAA, fails to mention the new statute or to indicate whether the Board considered if the appellant, in light of the VCAA, is entitled to additional notification or assistance from VA prior to adjudication of her claim. For these reasons, we hold that the Board failed to adequately consider “all ... applicable provisions of law” and to provide an adequate statement of the reasons or bases for its decision. See 38 U.S.C. § 7104(a); see also Baker v. West, 11 Vet.App. 163, 169 (1998) (Board shall determine in first instance which version of law is most favorable to claimant); Karnas v. Derwinski, 1 Vet.App. 308, 312-313 (1991) (where statute or regulation changes during appellate process, version more favorable to claimant shall apply). Accordingly, the Court will vacate the Board’s November 22, 2000, decision and remand the matter" }, { "docid": "2712336", "title": "", "text": "rise to the potential applicability of that subsection and, as the Board acknowledged, the appellant had raised equitable arguments in support of his contention that he should be entitled to benefits for the period between September 1992 and April 1994. Thus, on its face, the Board’s decision appears to be lacking an adequate statement of reasons or bases for its rejection of his equitable argument. See 38 U.S.C. § § 7104(d); Gilbert v. Derwinski 1 Vet.App. 49, 56-57 (1990) (Board is required to articulate reasons and bases for its decision sufficient for the claimant to understand the agency’s decision and the precise basis for that decision and to facilitate judicial review); cf. Schroeder v. West, 212 F.3d 1265 (Fed.Cir.2000) (“[Ojnce a veteran has properly made out a well-grounded claim ... the agency’s duty to assist pursuant to section 5107(a) ... attaches to the investigation of all possible in-service causes of that current disability, including those unknown to the veteran.”). Accordingly, we hold that the Secretary has not met his burden, in the EAJA context, of demonstrating that the Board’s failure to address these questions was substantially justified. Before this Court, the appellant argues that § 21.3032(b)(3)— specifically incorporates what the BVA described as “equitable principles” into the legal framework governing the perfection of claims for education benefits. Yet, inexplicably, the Board determined that it could not even reach the issue of whether [the ajppellant’s delay in submitting the required certificates of school enrollment should be excused. As a result, there is no discussion of the issue for appellate review. Notwithstanding, [the ajppellant argues that he established good cause in his notice of disagreement, when he correctly stated that the delay in the submission of the certificates of school enrollment had been caused by the VA’s delay in adjudicating the issue of service connection for the cause of the veteran’s death. [The ajppellant also correctly noted that the VA never advised him to keep submitting certificates of school enrollment. The BVA did not contest these matters in its decision. Rather, the Board acknowledged the equities surrounding the case, but denied retroactive" }, { "docid": "6869678", "title": "", "text": "of a lifetime disability” or, if not unemployable, that he suffers from a lifetime disability that would “render it impossible for the average person with the same disability to follow a substantially gainful occupation”. Brown (Clem), 2 Vet.App. at 446; see also 38 U.S.C. § 1502(a). Characteristics such as age, education, employment history, and physical and mental disabilities are considered. 38 C.F.R. §§ 3.321, 4.15 (1998). Whether the veteran is entitled to VA pension due to unemployability is a question of fact subject to the “clearly erroneous” standard of review in 38 U.S.C. § 7261(a)(4). See Cathell v. Brown, 8 Vet.App. 539, 543 (1996). The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson, supra; Gilbert, supra. The Board may consider only independent medical evidence to support its conclusions, and if the evidence of record is not sufficient the Board should supplement the record with an adequate medical evaluation. See Grantham, 8 Vet.App. at 235. In the instant case, the veteran’s claim for pension is well grounded because he has qualifying wartime service (R. at 17), he has completed the VA pension application as to his income (R. at 426-28), he may have the requisite total disability rating when all of his non-service-connected disabilities are properly evaluated, and" }, { "docid": "2712388", "title": "", "text": "6 Vet.App. 532, 538-39 (1994)—that is, where it lacks a plausible basis in the record, see Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990); see also Hensley v. West, 212 F.3d 1255, 1263-64 (Fed.Cir.2000) (discussing section 7261(a)(4))—or finds under 38 U.S.C. § 7261(a)(3) that the Board has made an error of law that requires the award of a benefit without further examination of the facts or readjudi-cation after the duty to assist is carried out, see, e.g., Bentley v. Derwinski, 1 Vet.App. 28, 31 (1990). Where the Court remands for readjudication in order for the Secretary to comply with VA’s 38 U.S.C. § 5107(a) duty to assist, see Hayre v. West, 188 F.3d 1327, 1331-32 (Fed.Cir.1999), or the Board’s 38 U.S.C. § 7104(d)(1) obligation to provide an adequate statement of reasons or bases for its decisions, see Gilbert, 1 Vet.App. at 56-57, the result on remand may often be the award of a VA benefit. Accordingly, based on this Court’s current prevailing-party caselaw, the Court holds, as the Secretary admitted in his most recent pleading, that under current caselaw the appellant is a prevailing party. Furthermore, as the Supreme Court has held: “Where [a material alteration of the legal relationship of the parties] has occurred, the degree of the plaintiffs overall success goes to the reasonableness of the award under [Eckerhart, supra], not to the availability of a fee award vel non.” Texas State Teachers Assoc., 489 U.S. at 792-93, 109 S.Ct. 1486. Hence, as the Secretary has also agreed, because the vacatur of the BVA decision has materially changed the legal relationship of the parties, it matters not as to the prevailing-party analysis that the appellant sought a reversal but gained only a vacatur; rather, that matter is to be considered as a part of the Court’s consideration of the reasonableness of the fee, if an award is made. C. Substantial Justification Because the appellant has alleged that the Secretary’s position was not substantially justified, Application at 3-5, the Secretary “has the burden of proving that [his] position was substantially justified in order to defeat the appellant’s EAJA application”." }, { "docid": "2712573", "title": "", "text": "ORDER PER CURIAM: Before the Court is the appeal of the November 22, 2000, decision of the Board of Veterans’ Appeals (Board or BVA) that concluded that a home loan guaranty indebtedness, in the amount of $4,265.00 plus accrued interest, was validly established against the veteran, and denied a waiver of recovery of that debt. This Court has jurisdiction pursuant to 38 U.S.C. § 7252. On December 13, 2000, the then-pro se appellant submitted correspondence which the Court construed as a motion pursuant to Rule 8 of the Court’s Rules of Practice and Procedure for a stay or injunction pending appeal. The construed motion complains of collection actions initiated by VA while the appellant’s claims are pending on appeal and seeks the Court’s assistance to stay any and all collection efforts until the Court renders a final decision on her appeal. The Court ordered the Secre tary to respond to the construed motion. On February 20, 2001, the Secretary filed a response, indicating that the “indebtedness has been transferred to the United States Department of the Treasury ... for collection” pursuant to statute. Included in his response was a motion requesting that the Court stay proceedings for 60 days to permit the “formulation of the Secretary’s position” on whether a stay or injunction should issue. In adjudicating claims, the Board is required to base its decision upon all evidence and material of record and to consider all applicable provisions of law and regulation. See 38 U.S.C. § 7104(a); see also 38 C.F.R. § 3.303(a) (2000). The Board must provide an adequate written statement of the reasons or bases for its findings and conclusions on “all material issues of fact or law presented on the record.” 38 U.S.C. § 7104(d)(1); see also Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat.2096 (2000), was enacted. Among other things, the VCAA eliminated the well-grounded-claim requirement and modified the Secretary’s duties to notify and assist claimants. See generally VCAA, §§ 3, 4, 7. During oral argument, which was" }, { "docid": "18308675", "title": "", "text": "the matters to the RO for further development and readjudication in light of the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat. 2096, codified in part at 38 U.S.C. §§ 5102, 5103, and 5103A. R. at 507-12. On April 1, 2003, the RO sent to Mrs. Hupp a letter notifying her of the enactment of the VCAA. R. at 514-16. There is no indication in the record that Mrs. Hupp or her counsel responded to that letter. See R. at 1-528. In May 2003, the RO issued a Supplemental Statement of the Case (SSOC) informing her that her service-connection and accrued benefits claims remained denied. R. at 518-21. In its July 14, 2003, decision, the Board denied Mrs. Hupp’s claim for service connection for the cause of the veteran’s death. R. at 1-15. When reviewing the claim, the Board concluded that the section 5103(a)/5103A notice and duty-to-assist requirements had been satisfied. R. at 4. The Board found that “[b]y letter dated in April 2003, the RO apprised the appellant of the pertinent provisions of the VCAA and of that evidence she needed to submit and the development the VA would undertake.” R. at 4. Mrs. Hupp appealed to this Court. II. LAW and ANALYSIS A. Standard of Review A Board determination of whether or not the section 5103(a) statutory notice requirements have been complied with is “a substantially factual determination.” Mayfield II, 444 F.3d at 1335. Thus, the Court reviews whether that determination was clearly erroneous. See Mayfield II, supra; see also Prickett v. Nicholson, 20 Vet.App. 370, 378 (2006), appeal docketed, No. 07-7057 (Fed.Cir. Nov. 27, 2006). A finding of material fact is clearly erroneous when, after reviewing the entire evidence, the Court “ ‘is left with the definite and firm conviction that a mistake has been committed.’ ” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). When applying this standard, “ ‘if the [Board’s] account of the evidence is plausible in light of" }, { "docid": "761933", "title": "", "text": "evidence; and providing a medical examination or medical opinion when necessary to resolve the claim. Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1338-39 (Fed.Cir.2003). The critical change in VA’s duty to assist wrought by the VCAA regards when the duty is triggered. The duty to assist is now triggered by VA’s receipt of a “substantially complete application for benefits,” 38 C.F.R. § 3.159(c) (2007), which means, for a case such as Mr. Robinson’s, an application “containing the claimant’s name ... sufficient service information for VA to verify the claimed service, if applicable; [and] the benefit claimed and any medical condition(s) on which it is based.” 38 C.F.R. § 3.159(a)(3) (2007). In October 2001, the Board remanded Mr. Robinson’s claim “for compliance with the notice and duty to assist provisions contained in the [VCAA].” R. at 187. I cannot say why VA never considered the possibility of direct service connection in this case because it cannot be ascertained from the record why VA elected only to consider the claim on a secondary basis. The Board decision here on appeal provides very little guidance. After listing the various statutory and regulatory provisions governing the direct theory of service connection (R. at 8), the Board went on only to evaluate the case as a claim for benefits on a secondary basis, having concluded that “the veteran contends that [his current conditions] were caused or aggravated by service-connected peptic ulcer disease, rather than due directly to any incident of active service.” R. at 8. The Board did not provide a sufficient explanation of the reasons or bases for concluding that the appellant’s arguments were competent to limit VA’s development and adjudication of the case. See 38 U.S.C. § 7104(d)(1) (requiring the Board, in rendering its decision, to provide a written statement of the reasons or bases for its “findings and conclusions[ ] on all material issues of fact and law presented on the record”); see also Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (indicating that evidence regarding medical diagnoses provided by a person without “medical knowledge” is not" }, { "docid": "15813190", "title": "", "text": "not an application for benefits subject to any duty associated tuith 38 U.S.C. 5103(a)” and that “[a] motion under this subpart is not a claim for benefits subject to the requirements and duties associated tuith 38 U.S.C. 5107(a).” 38 C.F.R. § 20.1411(c)-(d). These rules were enacted before the VCAA and apply to 38 U.S.C. §§ 5103 and 5107 as they existed prior to the VCAA. See DAV, 234 F.3d at 704 (“a CUE claim is unique and, thus, should not be governed by statutes such as 38 U.S.C. §§ 5103(a) and 5107(a) which apply to regular claims for benefits.”). However, there is nothing in the text or the legislative history of VCAA to indicate that VA’s duties to assist and notify are now, for the first time, applicable to CUE motions. III. CONCLUSION Upon consideration of the foregoing, the December 23, 1999, decision of the Board of Veterans Appeals denying an effective date earlier than January 2, 1997, for the appellant’s service-connected disorder of the larynx, including laryngeal carcinoma (Decision 1) is VACATED and the claim is REMANDED for readjudication. The December 23, 1999, decision of the Board of Veterans Appeals concluding that neither the December 1985 BVA decision denying the appellant’s claim for service connection for a chronic disorder of the larynx nor the Board’s November 1987 decision denying his claim on reconsideration were the product of CUE (Decision 2) is AFFIRMED. On remand, the appellant is free to submit additional evidence and argument necessary to the resolution of his claim, including any argument pertaining to the newly enacted VCAA. See Kutscherousky, supra. The Board shall proceed expeditiously. See Veterans’ Benefits Improvement Act, Pub.L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for “expeditious treatment” of claims remanded by the Board or Court); Drosky v. Brown, 10 Vet.App. 251 (1997). If the circumstances warrant, the Board is authorized and obligated to remand the claim to the VA RO for further development. See 38 C.F.R. § 19.9(a) (2000); Littke v. Derwinski, 1 Vet.App. 90 (1990). KRAMER, Chief Judge," }, { "docid": "16957491", "title": "", "text": "have been — -and, indeed, on remand might be — able to convince the RO or BVA that his NOD was timely. See Daniels v. Brown, 9 Vet.App. 348, 353 (1996) (violation of Thurber and Austin, both supra, prejudicial where “it is possible that the appellant would have sought and obtained additional [evidence] ... to. rebut the Board’s evidence”); see also 38 C.F.R. § 3.109(b) (1997) (permitting request for extension of time for “challenge [to] an adverse [VA] decision” for “good cause shown”). Accordingly, we hold that the BVA’s decision on the question of the timeliness of the veteran’s NOD was procedurally deficient and that the Court thus lacks a sufficient basis for review of the validity of that jurisdictional decision — that is, to determine whether the NOD was untimely. See 38 U.S.C. § 7104(d)(1); Sutton, supra; Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990) (made- quate statement of reasons or bases by Board prevented effective judicial review). The Court will thus vacate the decision and remand to the Board so that fair process can be afforded the veteran in the Board’s decision on the question of its jurisdiction. III. Conclusion Upon consideration of the foregoing analysis and the pleadings of the parties, the Court vacates the September 16, 1997, BVA decision and remands the matter for expeditious development and readjudication, on the basis of all applicable law and regulation, and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 5107, 7104(a), (d)(1), 7105; 38 C.F.R. §§ 3.103, 19.29, 19.34, 20.101, 20.201, 20.202, 20.700; Sutton and Bernard, both supra; Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) — all consistent with this opinion and in accordance with section 302 of the Veterans’ Benefits Improvements Act, Pub.L. No. 103t446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for “expeditious treatment” for claims remanded by BVA or the Court). See Allday v. Brown, 7 Vet.App. 517, 533-34 (1995). The Court denies the Secretary’s motion for single-judge affirmance. “On remand, the appellant will" }, { "docid": "15789960", "title": "", "text": "law, procedural processes, articulation of reasons or bases, or consideration of the benefit-of-the-doubt rule-that would warrant reversal or remand. Therefore, the Court affirms the August 18, 1999, BVA decision. IVERS, Judge, concurring: The procedural history of this appeal, particularly as depicted by the orders for supplemental pleadings, is indicative of the developing nature of the law in the wake of the enactment of the VCAA. We have now considered and opined regarding the statutory amendments made by the VCAA for more than a year. This Court has a duty to make decisions upon proceedings before the Court “as quickly as practicable,” 38 U.S.C. § 7267(a). As we fulfill that duty in this post-VCAA era, the Court should move toward dispositions of appeals in light of the entire body of veterans law without an unnecessarily sharp focus on the effect of the VCAA. Viewing the VCAA in the context in which it was written and debated by Congress exposes the limits of its scope. This Court’s opinion in Morton v. West, 12 Vet.App. 477 (1999), spurred Congress into action toward the eventual VCAA. See, e.g., 146 Cong. Rec. S9211-12 (daily ed. Sep. 25, 2000) (statements of Senators Specter and Rockefeller). The Morton decision included the following text: This Court and the Federal Circuit have interpreted 38 U.S.C. § 5107 as conditioning the Secretary’s duty to “assist ... in developing the facts pertinent to the claim” upon the submission by the claimant of [a] well-grounded claim.... [N]either the Secretary nor this Court is free to ignore a condition precedent established by Congress. Congress, of course, can choose to change or eliminate the well-grounded requirement altogether. Indeed, it is possible that after evaluating such considerations as fairness, equity, and the personnel, facility, and financial expenditures which would be required, Congress might well opt for requiring the Secretary to assist and examine all veterans, regardless of whether well-grounded claims have been submitted. But that balancing process is the responsibility of the legislative branch, not this Court. It is our responsibility to interpret existing law and to apply it to the record before us. Morton," }, { "docid": "2712387", "title": "", "text": "any type of entitlement to the benefits sought”, as the Secretary now proposes. Mar. 27, 2000, Resp. at 7. Nor is the Court inclined toward any such transformation that would exclude this appellant from prevailing-party status. We do not agree with the Secretary, or our dissenting colleague, that the appellant has not achieved significant success by virtue of the Court’s remand as to the two issues in question, which on remand remain very much alive rather than being foreclosed as they would have been had the Court affirmed the BVA decision. In the context of adjudication in this Court, outright reversal on the merits has been very rare. See William F. Fox, Jr., An Analysis of the Jurisprudence, Organization, and Operation of the Newest Article One Court 70-77 (2d. ed.1998). That is because this Court can reverse as to factual determinations, which are the matters involved in the vast majority of appealed cases, only where the Court finds that the Board’s factfinding is “clearly erroneous” under 38 U.S.C. § 7261(a)(4), see, e.g., Beaty v. Brown, 6 Vet.App. 532, 538-39 (1994)—that is, where it lacks a plausible basis in the record, see Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990); see also Hensley v. West, 212 F.3d 1255, 1263-64 (Fed.Cir.2000) (discussing section 7261(a)(4))—or finds under 38 U.S.C. § 7261(a)(3) that the Board has made an error of law that requires the award of a benefit without further examination of the facts or readjudi-cation after the duty to assist is carried out, see, e.g., Bentley v. Derwinski, 1 Vet.App. 28, 31 (1990). Where the Court remands for readjudication in order for the Secretary to comply with VA’s 38 U.S.C. § 5107(a) duty to assist, see Hayre v. West, 188 F.3d 1327, 1331-32 (Fed.Cir.1999), or the Board’s 38 U.S.C. § 7104(d)(1) obligation to provide an adequate statement of reasons or bases for its decisions, see Gilbert, 1 Vet.App. at 56-57, the result on remand may often be the award of a VA benefit. Accordingly, based on this Court’s current prevailing-party caselaw, the Court holds, as the Secretary admitted in his most recent pleading," }, { "docid": "1118484", "title": "", "text": "service records. Because paragraph 5.11 is not a valid provision, the VA could not rely solely upon the DNA’s certification that there was no evidence that the veteran had participated in a radiation-risk activity. Accordingly, the VA had a duty to pursue other possible sources of evidence in fulfillment of its duty to assist the appellant to develop her well-grounded claim. 38 U.S.C. § 5107; Littke v. Derwinski, 1 Vet.App. 90 (1990); 38 C.F.R. § 3.159 (1993); 38 C.F.R. § 3.303(a). However, the VA did not indicate that it had pursued any other sources of evidence, such as temporary duty orders directing the veteran to Nagasaki, and the record does not show the extent to which the DNA pursued any other records. Therefore, the Court cannot determine whether the Secretary’s duty to assist has been carried out. See Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991) (“Inherent in the duty-to-assist obligation and the Gilbert [v. Derwinski, 1 Vet.App. 49, 56-57 (1990) ] explanation mandate is a requirement for the Secretary to respond to a claimant’s request for VA assistance one way or the other.”). Furthermore, the VA did not assess the credibility of her testimony that the veteran had served in Nagasaki or address the application of the benefit of the doubt to her case. On remand, the VA will assist the appellant to develop her claim that her husband served in a Nagasaki hospital, and the Board will have an opportunity to assess the credibility of her testimony to that effect, and apply the benefit of the doubt if it finds the evidence to be in relative equipoise. See Cartright, 2 Vet.App. at 25-26; Gilbert, 1 Vet.App. at 53-56. III. Conclusion Upon consideration of the record, the appellant’s brief and reply brief, and the Secretary’s brief, the Court holds that para. 5.11c(3)(a)-(b) of the M21-1 Manual Part III was adopted “without observance of procedure required by law” and is therefore “unlawful and set aside.” 38 U.S.C. § 7261(a)(3)(D). Consequently, the May 4, 1992, decision of the Board of Veterans’ Appeals is VACATED and REMANDED for further development and readjudication" }, { "docid": "10162682", "title": "", "text": "the claim for brain damage except for the veteran’s unsubstantiated fears. Therefore, the Court concludes that the veteran has not presented a well-grounded claim for service connection for brain damage, and that therefore the VA’s duty to assist was not invoked and the VA was not required to conduct further medical tests requested by the veteran. See 38 U.S.C.A. § 5107(a); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). The veteran also contends he is entitled to an increased rating for PTSD, currently evaluated as 70% disabling. The Secretary has filed a motion for remand in regard to this claim to enable the VA to obtain the veteran’s SSA records, pursuant to the duty to assist the veteran in developing the facts pertinent to his claim. See 38 U.S.C.A. § 5107(a). The VA has a duty to assist in gathering social security records when put on notice that the veteran is receiving social security benefits. See Murincsak v. Derwinski, 2 Vet.App. 363 (1992); Masors v. Derwinski, 2 Vet.App. 181 (1992). The Court grants the Secretary’s motion for remand. The BVA shall obtain these records, readjudicate the veteran’s claim, and provide a new decision with adequate reasons or bases for the Board's findings and conclusions. See 38 U.S.C.A. § 7104(d)(1) (West 1991). Also in relation to the veteran’s PTSD claim, we note that the VARO rating decision dated September 25, 1989, awarded a 30% rating for PTSD from October 1984, and a 70% rating from May 1989. However, after review of the medical evidence the BVA stated that “[t]he findings most closely approximate the criteria for a 70 percent rating [for PTSD], both before and after February 1988.” Clarkson, BVA 91-14529, at 6 (emphasis added). Upon remand the. BVA shall provide reasons or bases for this conclusion. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990); 38 U.S.C.A. § 7104(d)(1). The Secretary concedes that remand is also appropriate for the BVA to address the veteran’s claim for a total rating based on individual unemployability, pursuant to 38 C.F.R. § 4.16(c) (1991). Although the BVA cited this regulation twice in its decision, the" }, { "docid": "16967784", "title": "", "text": "will withstand constitutional scrutiny. Saunders v. Brown, 4 Vet.App. 320, 325 (1993); Hrvatin v. Principi, 3 Vet.App. 426, 429 (1992). As noted in the Board’s decision, laws restricting the payment of VA benefits in the inter est of saving federal resources have been held constitutional even where disparate treatment may result. R. at 13; see also Quiban v. Veterans Administration, 928 F.2d 1154 (D.C.Cir.1991); Strott v. Derwinski 1 Vet.App. 114 (1991). In Talon, supra, the Federal Circuit upheld this Court’s determination that 38 U.S.C. § 107, deeming certain service in the organized military forces of the Government of the Commonwealth of the Philippines non-qualifying for certain VA benefits, is constitutional: The fact that the estimated cost of extending full benefits to veterans of the Philippine Army would be $2 billion annually, is itself a sufficient basis upon which Congress could rationally exclude Philippine veterans from the pension benefits involved in this case. 999 F.2d at 517. In this case, the Court concludes that, in the interest of saving governmental resources, it is not “patently arbitrary and irrational” to treat wartime veterans differently than non-wartime veterans for the purpose of awarding pension benefits and to treat veterans who served in the Republic of Vietnam differently from those who served elsewhere for the purpose of defining wartime service.' III. Upon consideration of the record and the briefs of the parties, the BVA decision is VACATED in part, and the matter of the appellant’s claim for an increased rating for residuals of his gunshot wound is REMANDED for adjudication under the rating code most favorable to the appellant. See Kamas, supra. With respect to the appellant’s claim for non-service-connected pension benefits, the Court holds that the appellant has not demonstrated that the Board committed either factual or legal error which would warrant reversal or remand. Gilbert v. Derwinski, 1 Vet.App. 49 (1990); see also Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Danville Plywood Corp. v. United States, 899 F.2d 3 (Fed.Cir.1990). The Court also is satisfied that the BVA decision meets the “reasons or" }, { "docid": "11915117", "title": "", "text": "that it seems to apply on its face to a claim for service connection, not to a claim for non-service-connected benefits, including pension. However, the Court notes as well that, even if that regulation were applicable to a pension claim, in this case the basis for the Board’s finding that the veteran “intended to kill himself as a means of escaping the mental anguish and/or criminal consequences resulting from the two murders” (R. at 9) would satisfy the § 3.302(b)(2) criterion of a “reasonable adequate motive” for the suicide attempt would not be clearly erroneous under 38 U.S.C. § 7261(a)(4), and thus the presumption established by § 3.302 under Sheets v. Derwinski, 2 Vet.App. 512, 516 (1992), would not apply. On either analysis, the Board made no error with respect to § 3.302. III. Conclusion Upon consideration of the record, the appellant’s informal brief, and the Secretary’s brief, the Court holds that the appellant has not demonstrated that the BVA committed error — in its findings of fact, conclusions of law, procedural processes, articulation of reasons or bases, or application of the benefit-of-the-doubt rule — that would warrant remand or reversal under 38 U.S.C. §§ 5107(a),(b), 7104(a),(d)(1) and the analysis in Gilbert, supra. Therefore, the Court affirms the September 3, 1993, BVA decision. AFFIRMED. IV. Separate Views The author judge notes that the Court’s discussion of 38 C.F.R. §§ 3.302 and 3.354 illustrates still another “confusing tapestry” of VA regulations which should be the subject of review and reevaluation by the Secretary with a view toward providing clear guidance for the adjudication of VA benefits claims. This Court has had not infrequent occasion to call to the Secretary’s attention the need for reevaluation of VA regulations on a wide variety of subjects. See, e.g., Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991) (as to unemployability for compensation purposes involving 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, and 4.19); Karnas v. Derwinski 1 Vet.App. 308, 311 (1991) (as to standards set forth in §§ 4.16(c), 4.129, and 4.132, Diagnostic Code (DC) 9210); Talley v. Derwinski 2 Vet.App. 282, 285-86, 288 (1992)" }, { "docid": "10155085", "title": "", "text": "Board, therefore, was required to deal with that claim. See EF v. Derwinski, 1 Vet.App. 324, 326 (1991) (VA’s duty to assist requires liberally reading all documents or oral testimony submitted prior to BVA decision to include issues raised therein); Shoemaker v. Derwinski, 3 Vet.App. 248, 255-56 (1992) (Board’s failure to consider individual unemployability required remand); Mingo v. Derwinski, 2 Vet.App. 51, 53-54 (1992) (Board must provide reasons or bases for its finding that veteran is not eligible for individual unem-ployability compensation). The Court, therefore, remands the individual unem-ployability claim to the Board for compliance with the statutory duty to assist in accordance with 38 U.S.C. § 5107(a) (formerly § 3007) and 38 C.F.R. § 3.159 (1991), and for consideration under 38 C.F.R. § 4.16(b). Finally, the Court notes that the appellant’s informal brief appears to contain claims for service connection for shrapnel wounds suffered by the veteran as well as a claim for payment of dependency and indemnity compensation (DIC) for her husband’s death. Since neither claim was raised to the BVA, the Court will not review those claims. See Branham v. Derwinski, 1 Vet.App. 93, 94 (1990). Should the veteran’s widow wish to pursue those claims, she must first apply to VA. Upon consideration of the record and the pleadings of the parties, the Court holds that the appellant has not demonstrated that the BVA committed error in denying entitlement to service connection for hypertensive heart disease, hypertrophic degenerative disease, hemorrhoids, beriberi, a goiter, and an increased rating for peptic ulcer disease, in its findings of fact, conclusions of law, procedural processes, consideration of the benefit-of-the-doubt rule, or articulation of reasons or bases, that would warrant remand or reversal under 38 U.S.C. §§ 7252, 5107(b), 7104(d)(1) (formerly §§ 4052, 3007, 4004), 7261 and the analysis in Gilbert, supra. The Court, therefore, affirms the August 27, 1990, BVA decision as to those claims. However, the Court remands the matter to the BVA for appropriate consideration of the claim for an individual unemployabil ity rating pursuant to 38 C.F.R. § 4.16(b), consistent with this decision, on the basis of all" }, { "docid": "22097685", "title": "", "text": "to the SSA unemployability rating that were not previously before the BVA. Under 38 U.S.C. § 5106 (formerly § 3006), the SSA, as is any other federal department or agency, is directed to “provide such information to the Secretary as the Secretary may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto.” Moreover, 38 U.S.C. § 5107(a) specifically states that VA’s duty to assist includes requesting information from other federal departments or agencies as described in section 5106. See Murphy, 1 Vet.App. at 82; Littke, 1 Vet.App. at 91. The record on appeal indicates that the only SSA record before the BVA in April 1990 was a copy of the 1983 decision rating the veteran unemployable for SSDI purposes. On remand, therefore, the BVA should seek to obtain any SSA records relating to the veteran’s unemployability subsequent to the 1983 SSA decision making him eligible for SSDI. 2. Upon remand the Board will be required to assist the veteran in obtaining both private and governmental records pertinent to his pension claim. As a consequence of the new evidence, the Board will then be required to readjudicate the veteran’s unemployability and provide reasons and bases for its conclusions. See 38 U.S.C. § 7104(d)(1); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical examination of the justification of the decision” and is not “merely for the purposes of rewriting the opinion so it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1)”.); Sammarco v. Derwinski, 1 Vet.App. 111, 112-14 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). The statement of reasons or bases must be sufficient to “enable a claimant to understand, not only the Board’s decision but also the precise basis for that decision” as well as to facilitate review by this Court. Gilbert, 1 Vet.App. at 56. In denying claims of unemployability, the BVA must provide reasons or bases for a conclusion that the veteran is not precluded from pursuing substantially gainful employment. See Collier, 1 Vet.App. at" }, { "docid": "15790056", "title": "", "text": "100 (1992). Also, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). In a nearly identical factual situation, this Court concluded as follows: The Board’s decision here, issued after the November 9, 2000, enactment of the VCAA, fails to mention the new statute or to indicate whether the Board considered if the appellant, in light of the VCAA, is entitled to additional notification or assistance from VA prior to adjudication of her claim. For these reasons, we hold that the Board failed to adequately consider “all ... applicable provisions of law” and to provide an adequate statement of the reasons or bases for its decision. See 38 U.S.C. § 7104(a). Weaver, supra. In view of the foregoing adjudicative requirements, here, just as the Court held in Weaver, the Board unquestionably violated 38 U.S.C. § 7104(a) and (d)(1) in failing to address the potentially applicable law (i.e., the VCAA) that had been enacted and became effective while the veteran’s claim was pending before the Board. See Karnas, supra; see also Allday, Sanden, Schafrath, and Gilbert, all supra. Thus, the Secretary correctly argued in his motion for remand that “readjudication in light of the VCAA [wa]s required” under Kami as, and also correctly cited to Gilbert, supra, and section 7104(d)(1). Mot. at 2. Accordingly, both of the Sumner alternative criteria for determining whether a remand was “predi cated on administrative error” were met in this case. First, the Secretary’s motion for remand for “readjudication in light of the VCAA” in direct reliance on Kamas, supra, was an “acknowledgement]” of the Board’s “administrative error”, Sumner, supra, in not addressing a change in law that had occurred “before the administrative ... process ha[d]" }, { "docid": "2913785", "title": "", "text": "constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). We must set aside any regulation or interpretation thereof, “other than a determination as to a factual matter,” relied upon by the Veterans Court that is “(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 limitations, or in violation of a statutory right; or (D) without observance of procedure required by law.” Id. We review questions of statutory interpretation de novo. Summers v. Gober, 225 F.3d 1293, 1295 (Fed.Cir.2000). Except to the extent that an appeal presents a constitutional issue, this court “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). B. History of the VCAA At the center of Mr. Sanders’s appeal are the notice requirements of the VCAA. The VCAA was enacted in November 2000 to ensure that the VA assisted veterans claiming VA benefits. The legislation was passed in response to concerns expressed by veterans, veterans service organizations, and Congress over a July 1999 decision of the Veterans Court, Morton v. West, 12 Vet.App. 477 (1999), which held that the VA did not have a duty to assist veterans in developing their claims unless the claims were “well-grounded.” Put another way, prior to the VCAA, the VA only had to assist in the full development of a veteran’s claim if the veteran first provided enough information for the VA to determine that the claim was plausible. The VCAA eliminated this well-grounded-claim requirement. See 146 Cong. Rec. H9913-14 (Oct. 17, 2000) (Explanatory Statement by the House and Senate Committees on Veterans’ Affairs). Instead, Congress noted that under the VA’s “claimant friendly” and “non-adversarial” adjudicative system, the VA “must provide a substantial amount of assistance to a [claimant] seeking benefits.” 146 Cong. Rec. at H9913 (citations omitted). Under the legal framework of the VCAA, there is generally no prerequisite to receiving VA assistance; the VA is" } ]

[ { "docid": "20817589", "title": "", "text": "FLOYD R. GIBSON, Circuit Judge. Following a five day trial, a jury convicted appellant Tou Hang of three counts of accepting a bribe as a public official in violation of 18 U.S.C. § 201(b)(2)(A) (1994). The district court sentenced Hang to three concurrent thirty-three month terms of imprisonment. Hang now appeals his convictions and sentence, and we affirm. I. BACKGROUND From approximately January of 1985 until April of 1993, Hang worked as an eligibility technician for the Minneapolis Public Housing Authority (“MPHA”), an independent public corporation organized under Minnesota law and established for the purpose of administering federal programs. MPHA, like thousands of other public housing au thorities across the nation, implements the Federal Low Income Housing Program, see 42 U.S.C. §§ 1404a-1440 (1988 & Supp. V 1993), by providing federally subsidized housing to eligible low income families. While MPHA necessarily complies with strict regulations imposed by the United States Department of Housing and Urban Development (“HUD”), see 24 C.F.R. §§ 900.101-999.101 (1995), it is locally operated and staffed by local employees. MPHA receives a minute amount of money from local sources, but federal funding comprises the overwhelming majority of its budget. In fact, the entire budget of MPHA, including expenditures, is subject to HUD approval. In MPHA’s written statement of policies, which was reviewed by HUD, the eligibility technician is identified as the individual who determines whether a particular housing applicant meets federally imposed threshold criteria. In addition, the manual specifies that the eligibility technician must ascertain whether an applicant qualifies for any federal or local housing preferences. In carrying out these duties during the time relevant to the charges in this case, Hang screened applications to verify whether persons were initially qualified or entitled to any preferences for low income housing. After Hang confirmed an applicant’s eligibility, that individual would be placed on a waiting list to receive a house. When an applicant for whom Hang had been responsible reached the top of the list, a process that normally took a significant amount of time, Hang would offer that person the next available home. Local employees supervised Hang’s" } ]

[ { "docid": "8151191", "title": "", "text": "He argues that he does not fit within the definition of “public official” contained within § 201(a) of that act: [T]he term “public official” means Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror[.] (Emphasis added.) The appellant argues that he was not employed only by the federal government, and that his agency’s funding was not entirely federal. True, Strissel also had some state responsibilities and state funding. However, he does not argue that he was not distributing federal monies in a program established by the federal government. The appellant’s argument must fail. In United States v. Velazquez, 847 F.2d 140 (4th Cir.1988), this Circuit adopted a broad reading of “public official,” drawing on the leading case from the Supreme Court: To determine whether any particular individual falls within this category, [public officials], the proper inquiry is not simply whether the person has signed a contract with the United States or agreed to serve as the Government’s agent, but rather whether the person occupies a position of public trust with official Federal responsibilities. Persons who hold such positions are public officials within the meaning of § 201 and liable for prosecution under the Federal bribery statute. Id. at 142 (emphasis added), quoting Dixson v. United States, 465 U.S. 482, 496,104 S.Ct. 1172, 1179, 79 L.Ed.2d 458 (1984). In Velazguez, this Court found that a state employee (a county deputy sheriff) working in a federal prison, guarding both state and federal prisoners, and being paid entirely by the state, was a “public official” within the meaning of this section. He had aided the escape of several federal prisoners in return for a bribe. This Court noted that it did not matter that the deputy received no federal funds, and that he had no contract with" }, { "docid": "20817597", "title": "", "text": "statute to the executive director of a local housing authority); Madeoy, 912 F.2d at 1494-95 (determining that a fee appraiser approved by the Veterans’ Administration was a public official); United States v. Velazquez, 847 F.2d 140, 141-42 (4th Cir.1988) (applying § 201 to a county deputy sheriff who was responsible for supervising federal inmates). The Fourth Circuit’s decision in Velazquez is particularly instructive. There, a federal inmate challenged his conviction under § 201 for bribing a deputy sheriff employed by Mecklenburg County, North Carolina. Velazquez, 847 F.2d at 141. Pursuant to a contract with the United States Government, the Mecklenburg County Jail agreed to provide supervision for certain federal inmates. Id. at 142. Those inmates were not separated from state inmates, and it does not appear that the jailers were required to treat the federal charges differently from other prisoners. See id. Nonetheless, the court examined the “nature of the responsibilities designated to [the jailer],” id., and it determined that he was a public official for purposes of § 201. Because the jail was subject to periodic inspections by federal employees, and because the jailer could not have supervised federal inmates absent some federal authority, the Fourth Circuit concluded that the county employee fell within the ambit of the bribery statute. Id. Turning to the facts of this case, we must analyze the nature of the responsibilities given to Hang in order to ascertain whether he possessed “a position of public trust with official federal responsibilities.” Dixson, 465 U.S. at 497, 104 S.Ct. at 1180. It is manifest that Hang occupied a position of public trust. He was on the front line in the effort to provide affordable housing to eligible families. As the person responsible for collecting, verifying, and updating information pertaining to applicants, he acted as the liaison between vulnerable and frequently desperate individuals and the organization designed to furnish them with federally subsidized homes. Especially considering the fact that Hang interacted with many Southeast Asian applicants who did not speak English, it is natural to assume that those persons looked up to him and expected him to" }, { "docid": "20817596", "title": "", "text": "delegation of authority.” Id. (quotation omitted). Accordingly, when deciding whether a particular individual is subject to the statute’s prohibition: the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government’s agent, but rather whether the person occupies a position of public trust with official federal responsibilities. Persons who hold such positions are public officials within the meaning of § 201 and liable for prosecution under the federal bribery statute. Id. (emphasis added). In applying this newly articulated legal standard to the facts before it, the Court had “little difficulty” in concluding that the petitioners, executives of a private nonprofit corporation responsible for allocating funds made available to a municipality through a federal block grant pro gram, were public employees for purposes of § 201. Following the Dixson decision, our sister circuits have construed § 201 to encompass a wide range of jobs involving varying degrees of federal responsibility. See, e.g., United States v. Strissel, 920 F.2d 1162, 1165-66 (4th Cir.1990) (applying the statute to the executive director of a local housing authority); Madeoy, 912 F.2d at 1494-95 (determining that a fee appraiser approved by the Veterans’ Administration was a public official); United States v. Velazquez, 847 F.2d 140, 141-42 (4th Cir.1988) (applying § 201 to a county deputy sheriff who was responsible for supervising federal inmates). The Fourth Circuit’s decision in Velazquez is particularly instructive. There, a federal inmate challenged his conviction under § 201 for bribing a deputy sheriff employed by Mecklenburg County, North Carolina. Velazquez, 847 F.2d at 141. Pursuant to a contract with the United States Government, the Mecklenburg County Jail agreed to provide supervision for certain federal inmates. Id. at 142. Those inmates were not separated from state inmates, and it does not appear that the jailers were required to treat the federal charges differently from other prisoners. See id. Nonetheless, the court examined the “nature of the responsibilities designated to [the jailer],” id., and it determined that he was a public official for purposes of § 201. Because the jail was subject" }, { "docid": "20817595", "title": "", "text": "corporation, he did not act “for or on behalf of’ the United States Government. Furthermore, he argues that he could not otherwise have been a public official because his “low-level” position did not involve any official functions. The classification of an individual as a “public official” is a legal determination, and we thus review this issue de novo. See United States v. Madeoy, 912 F.2d 1486, 1494 (D.C.Cir.1990), cert. denied, 498 U.S. 1105, 111 S.Ct. 1008, 112 L.Ed.2d 1091 (1991). The Supreme Court in Dixson v. United States, 465 U.S. 482, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984), considered the appropriate scope of the term “public official.” In that case, after extensively detailing the historical underpinnings of 18 U.S.C. § 201, the Court explained that Congress had intended to enact a broadly applicable federal bribery statute. Id. at 496, 104 S.Ct. at 1179. The Court concluded that “§ 201(a) has been accurately characterized as a comprehensive statute applicable to all persons performing activities for or on behalf of the United States, whatever the form of delegation of authority.” Id. (quotation omitted). Accordingly, when deciding whether a particular individual is subject to the statute’s prohibition: the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government’s agent, but rather whether the person occupies a position of public trust with official federal responsibilities. Persons who hold such positions are public officials within the meaning of § 201 and liable for prosecution under the federal bribery statute. Id. (emphasis added). In applying this newly articulated legal standard to the facts before it, the Court had “little difficulty” in concluding that the petitioners, executives of a private nonprofit corporation responsible for allocating funds made available to a municipality through a federal block grant pro gram, were public employees for purposes of § 201. Following the Dixson decision, our sister circuits have construed § 201 to encompass a wide range of jobs involving varying degrees of federal responsibility. See, e.g., United States v. Strissel, 920 F.2d 1162, 1165-66 (4th Cir.1990) (applying the" }, { "docid": "3045952", "title": "", "text": "merely consisted of “making non-binding recommendations based on technical data.” Appellant’s Brief at 30. In addition, Appellant points out that he was not in a position to authorize changes in the contract or make decisions binding on the government and relies upon internal Department of Defense Policies that identify “inherently governmental functions” that may not be delegated to private contractors such as himself. Although this circuit has not addressed the scope of the term “public official” in circumstances such as these, the findings of several of our sister circuits are instructive. In United States v. Hang, 75 F.3d 1275 (8th Cir.1996), the Eighth Circuit found that an eligibility technician for an independent public corporation organized under Minnesota law and established for the purpose of administering federal programs and funds was a public official. The defendant’s duties in Hang included screening applications to verify whether the applicants were entitled to preferences for low-income housing and placing them on a waiting list. The defendant did not, however, have authority actually to rent an apartment. In affirming the defendant’s conviction for receiving bribes in exchange for accelerating the application process, the Eighth Circuit found that the defendant occupied a position of public trust in that he was “on the front line in the effort to provide affordable housing to eligible families.” Id. at 1280. In addition, the court held that the defendant’s job involved official federal responsibilities in that the agency he worked for was organized for the exclusive purpose of implementing federal programs; was subject to federal oversight; and the defendant himself had a great deal of responsibility in determining who would receive available housing in that he was ultimately responsible for the accuracy of the applicants’ files and the approval of his recommendations were largely pro forma. Id. Similarly, in United States v. Madeoy, 912 F.2d 1486 (D.C.Cir.1990), cert. denied, 498 U.S. 1105, 111 S.Ct. 1008, 112 L.Ed.2d 1091 (1991), the District of Columbia Circuit. upheld the conviction of a VA-approved fee appraiser for accepting bribes as a public official. The defendant in Madeoy conducted real estate appraisals for the purpose" }, { "docid": "8151192", "title": "", "text": "Supreme Court: To determine whether any particular individual falls within this category, [public officials], the proper inquiry is not simply whether the person has signed a contract with the United States or agreed to serve as the Government’s agent, but rather whether the person occupies a position of public trust with official Federal responsibilities. Persons who hold such positions are public officials within the meaning of § 201 and liable for prosecution under the Federal bribery statute. Id. at 142 (emphasis added), quoting Dixson v. United States, 465 U.S. 482, 496,104 S.Ct. 1172, 1179, 79 L.Ed.2d 458 (1984). In Velazguez, this Court found that a state employee (a county deputy sheriff) working in a federal prison, guarding both state and federal prisoners, and being paid entirely by the state, was a “public official” within the meaning of this section. He had aided the escape of several federal prisoners in return for a bribe. This Court noted that it did not matter that the deputy received no federal funds, and that he had no contract with the federal government. The “nature of his responsibilities” was federal, and thus he was a “public official.” Id. Given that precedent, Strissel cannot argue that he was not a federal official. He administered federal funds in a federal program, and the nature of his responsibilities in this case was clearly federal. D. The Forfeiture Order Appellant contends that he forfeited certain items that were not listed in the indictment, and hence he had no notice that these items were at issue and they should not have been taken. These additional items were materials and services that were provided to Strissel as kickbacks by several contractors. The appellant relies on Federal Rule of Criminal Procedure 7(c)(2): (2) Criminal Forfeiture. No judgment of forfeiture may be entered in a criminal proceeding unless the indictment or the information shall allege the extent of the interest or property subject to forfeiture. This Circuit, however, has held that “The rule does not ... require that the indictment describe each item subject to forfeiture. This can be done in a bill" }, { "docid": "20817599", "title": "", "text": "shepherd them through the often labyrinthine quest to obtain desired government services. We have no problem, then, in concluding that Hang occupied a position of public trust. Similarly, we find that Hang’s employment involved official federal responsibilities. In contrast to the county jail in Velazquez, which clearly performed important state and local functions, the MPHA was organized for the exclusive purpose of implementing federal programs and is subject to exacting oversight by a federal agency. In addition, during the time period relevant to this case, Hang was largely responsible for determining who qualified for federally subsidized housing. According to Connie Toavs, Hang’s supervisor, eligibility technicians had “a lot” of responsibility, and Hang was entrusted with screening, approving, verifying, and updating applications. In addition, the eligibility technician was ultimately responsible for the accuracy of applicants’ files, and he would decide who on the waiting list would receive an available house. Although Hang would eventually have to receive approval before actually renting a unit, his supervisors indicated that this process basically amounted to a pro forma affirmation of the eligibility technician’s recommendations. In essence, then, Hang had primary authority for determining who would be the beneficiaries of federal funds. Obviously, this is an undertaking in which Hang could not have engaged had he not possessed some federal authority. See Velazquez, 847 F.2d at 142. Accordingly, we determine that Hang’s job involved official federal responsibilities. Because Hang occupied a position of public trust with official federal responsibilities, he was a public official for purposes of § 201. See Dixson, 465 U.S. at 496, 104 S.Ct. at 1180 (“Persons who hold such positions are public officials within the meaning of § 201 and liable for prosecution under the federal bribery statute.”). Hang had “some degree of official responsibility for carrying out a federal program or policy,” id. at 499, 104 S.Ct. at 1181, and we thus reject his assertion that the district court lacked jurisdiction over this case. B. The Subpoena Requests Hang argues that the district court committed reversible error when it refused to honor his Rule 17 requests to issue certain subpoenas." }, { "docid": "3045951", "title": "", "text": "Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such depart ment, agency, or branch of Government, or a juror. 18 U.S.C. § 201(a)(1). In Dixson v. United States, 465 U.S. 482, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984), the Supreme Court held that this definition extends beyond merely government employees and contractors to include private individuals who “occupy a position of public trust with official federal responsibilities.” Id. at 496, 104 S.Ct. 1172. Such an individual, however, “must possess some degree of official responsibility for carrying out a federal program or policy” to be considered a public official. Id. at 499, 104 S.Ct. 1172. In the instant case, Appellant contends that he did not occupy a position of public trust with official federal responsibilities. Appellant bases this contention on the fact that his job merely consisted of “making non-binding recommendations based on technical data.” Appellant’s Brief at 30. In addition, Appellant points out that he was not in a position to authorize changes in the contract or make decisions binding on the government and relies upon internal Department of Defense Policies that identify “inherently governmental functions” that may not be delegated to private contractors such as himself. Although this circuit has not addressed the scope of the term “public official” in circumstances such as these, the findings of several of our sister circuits are instructive. In United States v. Hang, 75 F.3d 1275 (8th Cir.1996), the Eighth Circuit found that an eligibility technician for an independent public corporation organized under Minnesota law and established for the purpose of administering federal programs and funds was a public official. The defendant’s duties in Hang included screening applications to verify whether the applicants were entitled to preferences for low-income housing and placing them on a waiting list. The defendant did not, however, have authority actually to rent an apartment. In affirming the" }, { "docid": "22925221", "title": "", "text": "1437b-1437d (1988 & Supp. IV 1992). A PHA is “any State, county, municipality, or other governmental entity or public body (or agency or instrumentality thereof) which is authorized to engage in or assist in the development or operation of low-income housing.” 42 U.S.C. § 1437a(b)(6) (Supp. IV 1992). The PHA is responsible for selecting and assigning tenants as well as for physically maintaining the projects.' Typically, the PHA is a not-for-profit, municipal corporation which arranges for a separate agency to administer the local, lower-income housing program. The second, known as the Section 8 Existing Housing Program (“Section 8”), provides subsidies to private landlords. See Housing and Community Development Act of 1974 (“HCDA”), 42 U.S.C. § 1437f (1988 & Supp. IV 1992). Under the Section 8 program, qualifying tenants pay a portion of their income to the landlord. 42 U.S.C. § 1437a(a) (1988 & Supp. IV 1992). To raise these payments to market level rents, Section 8 authorizes the PHA to make “assistance payments” to the landlords by using federal funds made available by contract with the United States Department of Housing and Urban Development (“HUD”). 42 U.S.C. § 1437f(b), (e) and (o). To participate in the Section 8 program, an eligible family applies to a local PHA. The PHA then puts the eligible family on a waiting list according to three statutorily mandated selection priorities or preferences: (1) families who occupy substandard housing; (2) families who are. involuntarily displaced; and (3) families who are paying more than 50 percent of family income for rent. 42 U.S.C. § 1437f(o)(3); 24 C.F.R. §§ 882.219, 887.157 (1993). In general, the PHA must place applicants who qualify for a federal preference on the waiting list ahead of applicants who do not. The PHA, however, “must apply the Federal preferences in a manner that is consistent with,” (1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7 (1988) (non-discrimination in federally-assisted programs); Title VIII of the Civil Rights Act of 1968 (the “Fair Housing Act” or “FHA”), 42 U.S.C. §§ 3601-3631 (1988 & Supp. IV 1992); and other equal" }, { "docid": "20817590", "title": "", "text": "minute amount of money from local sources, but federal funding comprises the overwhelming majority of its budget. In fact, the entire budget of MPHA, including expenditures, is subject to HUD approval. In MPHA’s written statement of policies, which was reviewed by HUD, the eligibility technician is identified as the individual who determines whether a particular housing applicant meets federally imposed threshold criteria. In addition, the manual specifies that the eligibility technician must ascertain whether an applicant qualifies for any federal or local housing preferences. In carrying out these duties during the time relevant to the charges in this case, Hang screened applications to verify whether persons were initially qualified or entitled to any preferences for low income housing. After Hang confirmed an applicant’s eligibility, that individual would be placed on a waiting list to receive a house. When an applicant for whom Hang had been responsible reached the top of the list, a process that normally took a significant amount of time, Hang would offer that person the next available home. Local employees supervised Hang’s activities, and HUD did not have any direct role in paying Hang or conducting his performance reviews. On September 14, 1994, the United States returned an amended indictment against Hang charging him with three counts of accepting a bribe as a public official in violation of 18 U.S.C. § 201(b)(2)(A). The Government contended that Hang, a native of Laos, used his bilingual skills to prey on housing applicants who were also immigrants from Southeast Asian countries. Each count- in the indictment represented one incident in which Hang allegedly accepted money from an Asian individual in order to accelerate the application process. Hang apparently communicated to these unfortunate and vulnerable victims that they would have to pay him money in order to obtain federally subsidized housing. One day before trial, Hang’s attorney made his first efforts to contact the Government’s witnesses. During these attempted interviews, counsel learned that one of the persons who reportedly bribed Hang, Syphong Souvannarath, had resided at the University of Minnesota Hospital for approximately four weeks to undergo treatment for an unspecified" }, { "docid": "3045956", "title": "", "text": "although Appellant did not exercise the final judgment on contracting decisions, the information and recommendations he provided served as the basis for many of those decisions. As a result, it is clear that, in the performance of his duties, Appellant had some official responsibility for the carrying out of a government program. Nor does the existence of the Department of Defense policies relied upon by Appellant alter this conclusion. These policies do not purport to define what is an official responsibility as that term is used in § 201. Rather, they merely provide guidance as to what functions must be performed by government employees and those that may be out-sourced to contractors such as Appellant. Therefore, they do not provide any guidance as to whether the functions performed by Appellant can be seen as including federal responsibility. As a result, the court hereby AFFIRMS the district court’s denial of Appellant’s motion to dismiss. B. Jury Instructions Appellant’s final enumeration of error alleges that the jury instructions inaccurately stated the law with respect to the definition of “public official.” The court first notes that it is unclear whether the question of Appellant’s status as a public official is a question of fact that should have been submitted to the jury at all, or, instead, is a question of law that should have been decided by the district court. If this determination is indeed one of law to be made by the judge, the submission of the question to the jury was unnecessary, and the propriety of the jury instructions need not be reached. This circuit has not spoken on the issue. Those circuit courts that have decided the issue have found that the determination of whether a defendant is a public official subject to § 201 is a question of law. See Madeoy, 912 F.2d at 1494 (finding this to be a legal question to be decided by the district court); Hang, 75 F.3d at 1279 (stating that this is a question of law and therefore reviewing the issue de novo). We find that it is unnecessary to resolve this issue" }, { "docid": "23085723", "title": "", "text": "eventual disbursement, petitioners personally bestowed the benefits of the HCDA program to residents of Peoria. IV A In concluding that employment by the United States or some other similarly formal contractual or agency bond is not a prerequisite to prosecution under the federal bribery statute, we are supported by the majority of recent decisions in the Federal District Courts and Courts of Appeals. In United States v. Hollingshead, 672 F. 2d 751 (1982), the Ninth Circuit determined that an employee of the Federal Eeserve Bank of San Francisco, which is a private banking institution, was a public official for purposes of § 201(a) because the employee was responsible for carrying out tasks delegated by a federal agency and was subject to substantial federal supervision. The defendant received bribes and kickbacks from independent contractors to influence him in making capital purchase requisitions. In short, like petitioners, he was in a position of responsibility, acting for or on behalf of the Federal Government in administering expenditure of federal funds. Similarly, in United States v. Kirby, 587 F. 2d 876, 879-880 (1978), the Seventh Circuit ruled that two privately employed grain inspectors, licensed by the Department of Agriculture, were public officials because they had responsibility for implementing a warehouse licensing program established by Congress. For analogous reasons, the Federal District Court for the District of New Mexico found a state employee responsible for administering the Farmers Home Administration rural housing improvement grant program to be included within § 201(a). United States v. Gallegos, 510 F. Supp. 1112, 1113-1114 (1981). Again, the defendant’s official duties in processing grant applications directly influenced the expenditure of federal funds. See also United States v. Mosley, 659 F. 2d 812 (CA7 1981); Harlow v. United States, 301 F. 2d 361 (CA5), cert. denied, 371 U. S. 814 (1962); United States v. Griffin, 401 F. Supp. 1222 (SD Ind. 1975), affirmance order sub nom. United States v. Metro Management Corp., 541 F. 2d 284 (CA7 1976). But see United States v. Loschiavo, 531 F. 2d 659 (CA2 1976); United States v. Del Toro, 513 F. 2d 656 (CA2), cert." }, { "docid": "5097986", "title": "", "text": "the 1909 bribery act to “every employee of the Government,” but limited it to “those, not officers, who are performing duties of an official character” or “acting in official functions.” Id. at 366, 41 S.Ct. at 515 (emphases added). To give meaning to the term “official function,” and in light of the rule of lenity, the Court found that the law could not reach so far as to include “ ‘window cleaners, scrubwomen, elevator boys, doorkeepers, pages’ ” or baggage porters. Id. at 366-68, 41 S.Ct. at 515-16 (quoting Krichman v. United States, 263 F. 538, 544 (2d Cir.1920) (Ward, J., dissenting)). Neville’s job was different. He was a permanent, rather than emergency, government employee; he performed a traditionally governmental, not proprietary, function; and most important, as a corrections officer he occupied a position involving a far greater degree of public responsibility than a baggage porter. Nor does Dixson support Neville’s argument. In Dixson, the Supreme Court addressed whether officers of a private, nonprofit organization who administered and expended federal block grants were public officials. 465 U.S. at 484, 104 S.Ct. at 1173-74. The Court observed in dictum that not “all employees of local organizations responsible for administering federal grant programs are public officials within the meaning of § 201(a),” stating that they “must possess some degree of official responsibility for carrying out a federal program or policy.” Id. at 499, 104 S.Ct. at 1181. Because the Court made this observation in connection with the threshold that private sector employees, not government employees, must meet to qualify as holding positions of public trust, the requirement of “official responsibility for carrying out a federal program or policy” has no bearing on this case. The other cases relied upon by Neville are likewise distinguishable. See Madeoy, 912 F.2d at 1494 (finding a private appraiser had “official federal responsibilities” because the government guaranteed loans based on his recommendations); United States v. Hollingshead, 672 F.2d 751, 754 (9th Cir.1982) (finding that private sector employee of federal reserve bank who “recommended] the expenditure of federal funds” was a public official). If anything, the ease law" }, { "docid": "3045950", "title": "", "text": "of error regarding the pre-indictment delay and the failure of the government to prove an allegation in the indictment are meritless and may be disposed of without discussion. Appellant’s contentions regarding his motion to dismiss and the jury instructions, however, require a bit more attention. A. Denial of the Motion to Dismiss As stated above, in his first enumeration of error, Appellant contends that the district court improperly denied his motion to dismiss on the grounds that he is not a “public official” as defined by the statute under which he was convicted. 18 U.S.C. § 201 provides that it is unlawful for a “public official” to, among other things, demand, seek, or accept anything of value in return for being influenced in an official act. See 18 U.S.C. § 201(b)(2). This statute also makes it illegal to seek, receive, or accept anything of value for or because of an official act performed or to be performed. See 18 U.S.C. § 201(c)(1)(B). The term “public official” is defined as: Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such depart ment, agency, or branch of Government, or a juror. 18 U.S.C. § 201(a)(1). In Dixson v. United States, 465 U.S. 482, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984), the Supreme Court held that this definition extends beyond merely government employees and contractors to include private individuals who “occupy a position of public trust with official federal responsibilities.” Id. at 496, 104 S.Ct. 1172. Such an individual, however, “must possess some degree of official responsibility for carrying out a federal program or policy” to be considered a public official. Id. at 499, 104 S.Ct. 1172. In the instant case, Appellant contends that he did not occupy a position of public trust with official federal responsibilities. Appellant bases this contention on the fact that his job" }, { "docid": "20817600", "title": "", "text": "of the eligibility technician’s recommendations. In essence, then, Hang had primary authority for determining who would be the beneficiaries of federal funds. Obviously, this is an undertaking in which Hang could not have engaged had he not possessed some federal authority. See Velazquez, 847 F.2d at 142. Accordingly, we determine that Hang’s job involved official federal responsibilities. Because Hang occupied a position of public trust with official federal responsibilities, he was a public official for purposes of § 201. See Dixson, 465 U.S. at 496, 104 S.Ct. at 1180 (“Persons who hold such positions are public officials within the meaning of § 201 and liable for prosecution under the federal bribery statute.”). Hang had “some degree of official responsibility for carrying out a federal program or policy,” id. at 499, 104 S.Ct. at 1181, and we thus reject his assertion that the district court lacked jurisdiction over this case. B. The Subpoena Requests Hang argues that the district court committed reversible error when it refused to honor his Rule 17 requests to issue certain subpoenas. As a preface to our consideration of Hang’s allegations, it will be useful to examine the structure and development of Rule 17 of the Federal Rules of Criminal Procedure. Rule 17 outlines the method by which the Government and criminal defendants may procure subpoenas from the district court. When a party requests a subpoena, subsection 17(a) directs the clerk to issue the subpoena “signed and sealed but otherwise in blank,” Fed.R.Crim.P. 17(a), to that party; the party will then fill in the omissions before service of the subpoena. To effectuate proper service, however, the party must include with the document the appropriate fee for one day’s attendance at trial and a reimbursement for allowable mileage. If an individual has sufficient funds to satisfy these expenses, the entire process may be completed without any additional intervention by the court. In many cases, though, a defendant cannot pay the requisite charges. Thus, Rule 17(b) offers a procedure through which indigent persons may acquire necessary subpoenas. Prior to 1966, this provision compelled destitute defendants to make the substantial" }, { "docid": "3045955", "title": "", "text": "the defendant is in a position of providing information and making recommendations to decision makers as long as the defendant’s input is given sufficient weight to influence the outcome of the decisions at issue. Based upon such reasoning, this court finds that Appellant was indeed acting as a public official. Appellant’s position was one of public trust in that his advice and the information he provided was relied upon by officers of the Air Force in making decisions pertaining to the procurement of equipment. In addition, it is clear from the record that Appellant acted as the primary liaison between Starflite and the Air Force and could not have done so without some federal responsibility. Appellant’s job also included federal responsibilities in that he was responsible for monitoring and providing information regarding the technical aspects of the edge-marker contract. In providing such information, the evidence shows that his opinion was highly regarded, the decision makers relied upon his technical expertise and deferred to him on many day-to-day decisions. Like the defendants in Hang and Madeoy, although Appellant did not exercise the final judgment on contracting decisions, the information and recommendations he provided served as the basis for many of those decisions. As a result, it is clear that, in the performance of his duties, Appellant had some official responsibility for the carrying out of a government program. Nor does the existence of the Department of Defense policies relied upon by Appellant alter this conclusion. These policies do not purport to define what is an official responsibility as that term is used in § 201. Rather, they merely provide guidance as to what functions must be performed by government employees and those that may be out-sourced to contractors such as Appellant. Therefore, they do not provide any guidance as to whether the functions performed by Appellant can be seen as including federal responsibility. As a result, the court hereby AFFIRMS the district court’s denial of Appellant’s motion to dismiss. B. Jury Instructions Appellant’s final enumeration of error alleges that the jury instructions inaccurately stated the law with respect to the definition" }, { "docid": "23085722", "title": "", "text": "whose conviction the House Judiciary Committee explicitly endorsed. See swpra, at 494-496. Both Levine and petitioners worked in decentralized federal assistance programs. Both Levine and petitioners effectively determined who would be the beneficiary of federal dollars, and both solicited bribes to influence their official decisions. Levine held a position of public trust with official federal responsibilities: to collect and investigate the accuracy of data submitted by milk producers in support of their claims for federal subsidies. Petitioners held a position of public trust with official federal responsibilities: allocating federal resources, pursuant to complex statutory and regulatory guidelines, in the form of residential rehabilitation contracts. Indeed, in certain respects, petitioners performed duties that were more clearly “official” and more obviously undertaken “for or on behalf of the United States” than the responsibilities of the defendant in Levine. Where Levine was paid through a levy imposed on local businesses participating in the marketing order, petitioners’ salaries were completely funded by the HCDA grant. Where Levine simply compiled data that were submitted to the Department of Agriculture for eventual disbursement, petitioners personally bestowed the benefits of the HCDA program to residents of Peoria. IV A In concluding that employment by the United States or some other similarly formal contractual or agency bond is not a prerequisite to prosecution under the federal bribery statute, we are supported by the majority of recent decisions in the Federal District Courts and Courts of Appeals. In United States v. Hollingshead, 672 F. 2d 751 (1982), the Ninth Circuit determined that an employee of the Federal Eeserve Bank of San Francisco, which is a private banking institution, was a public official for purposes of § 201(a) because the employee was responsible for carrying out tasks delegated by a federal agency and was subject to substantial federal supervision. The defendant received bribes and kickbacks from independent contractors to influence him in making capital purchase requisitions. In short, like petitioners, he was in a position of responsibility, acting for or on behalf of the Federal Government in administering expenditure of federal funds. Similarly, in United States v. Kirby, 587 F." }, { "docid": "3045953", "title": "", "text": "defendant’s conviction for receiving bribes in exchange for accelerating the application process, the Eighth Circuit found that the defendant occupied a position of public trust in that he was “on the front line in the effort to provide affordable housing to eligible families.” Id. at 1280. In addition, the court held that the defendant’s job involved official federal responsibilities in that the agency he worked for was organized for the exclusive purpose of implementing federal programs; was subject to federal oversight; and the defendant himself had a great deal of responsibility in determining who would receive available housing in that he was ultimately responsible for the accuracy of the applicants’ files and the approval of his recommendations were largely pro forma. Id. Similarly, in United States v. Madeoy, 912 F.2d 1486 (D.C.Cir.1990), cert. denied, 498 U.S. 1105, 111 S.Ct. 1008, 112 L.Ed.2d 1091 (1991), the District of Columbia Circuit. upheld the conviction of a VA-approved fee appraiser for accepting bribes as a public official. The defendant in Madeoy conducted real estate appraisals for the purpose of obtaining Federal Housing Administration-insured loans. Despite the existence of a VA regulation stating generally that appraisers are not agents of the government and had no authority to bind the government, the court found the defendant to be a public official. In so finding, the court noted that it was on the defendant’s recommendation, subject to only limited review, that the government guaranteed loans. See also United States v. Velazquez, 847 F.2d 140 (4th Cir.1988) (applying the statute to a county deputy sheriff who was responsible for supervising federal inmates); United States v. Strissel, 920 F.2d 1162, 1165-66 (4th Cir.1990) (finding the executive director of a local housing authority to be a public official); United States v. Ricketts, 651 F.Supp. 283 (S.D.N.Y.1987) (applying the statute to a supervisor in an organization that contracted with the Bureau of Prisons). These cases make it clear that in order to be considered a public official a defendant need not be the final decision maker as to a federal program or policy. Rather, it appears to be sufficient that" }, { "docid": "20817598", "title": "", "text": "to periodic inspections by federal employees, and because the jailer could not have supervised federal inmates absent some federal authority, the Fourth Circuit concluded that the county employee fell within the ambit of the bribery statute. Id. Turning to the facts of this case, we must analyze the nature of the responsibilities given to Hang in order to ascertain whether he possessed “a position of public trust with official federal responsibilities.” Dixson, 465 U.S. at 497, 104 S.Ct. at 1180. It is manifest that Hang occupied a position of public trust. He was on the front line in the effort to provide affordable housing to eligible families. As the person responsible for collecting, verifying, and updating information pertaining to applicants, he acted as the liaison between vulnerable and frequently desperate individuals and the organization designed to furnish them with federally subsidized homes. Especially considering the fact that Hang interacted with many Southeast Asian applicants who did not speak English, it is natural to assume that those persons looked up to him and expected him to shepherd them through the often labyrinthine quest to obtain desired government services. We have no problem, then, in concluding that Hang occupied a position of public trust. Similarly, we find that Hang’s employment involved official federal responsibilities. In contrast to the county jail in Velazquez, which clearly performed important state and local functions, the MPHA was organized for the exclusive purpose of implementing federal programs and is subject to exacting oversight by a federal agency. In addition, during the time period relevant to this case, Hang was largely responsible for determining who qualified for federally subsidized housing. According to Connie Toavs, Hang’s supervisor, eligibility technicians had “a lot” of responsibility, and Hang was entrusted with screening, approving, verifying, and updating applications. In addition, the eligibility technician was ultimately responsible for the accuracy of applicants’ files, and he would decide who on the waiting list would receive an available house. Although Hang would eventually have to receive approval before actually renting a unit, his supervisors indicated that this process basically amounted to a pro forma affirmation" }, { "docid": "3045954", "title": "", "text": "of obtaining Federal Housing Administration-insured loans. Despite the existence of a VA regulation stating generally that appraisers are not agents of the government and had no authority to bind the government, the court found the defendant to be a public official. In so finding, the court noted that it was on the defendant’s recommendation, subject to only limited review, that the government guaranteed loans. See also United States v. Velazquez, 847 F.2d 140 (4th Cir.1988) (applying the statute to a county deputy sheriff who was responsible for supervising federal inmates); United States v. Strissel, 920 F.2d 1162, 1165-66 (4th Cir.1990) (finding the executive director of a local housing authority to be a public official); United States v. Ricketts, 651 F.Supp. 283 (S.D.N.Y.1987) (applying the statute to a supervisor in an organization that contracted with the Bureau of Prisons). These cases make it clear that in order to be considered a public official a defendant need not be the final decision maker as to a federal program or policy. Rather, it appears to be sufficient that the defendant is in a position of providing information and making recommendations to decision makers as long as the defendant’s input is given sufficient weight to influence the outcome of the decisions at issue. Based upon such reasoning, this court finds that Appellant was indeed acting as a public official. Appellant’s position was one of public trust in that his advice and the information he provided was relied upon by officers of the Air Force in making decisions pertaining to the procurement of equipment. In addition, it is clear from the record that Appellant acted as the primary liaison between Starflite and the Air Force and could not have done so without some federal responsibility. Appellant’s job also included federal responsibilities in that he was responsible for monitoring and providing information regarding the technical aspects of the edge-marker contract. In providing such information, the evidence shows that his opinion was highly regarded, the decision makers relied upon his technical expertise and deferred to him on many day-to-day decisions. Like the defendants in Hang and Madeoy," } ]

[ { "docid": "22068832", "title": "", "text": "entertain an attack on that order mounted through filing of a motion to reopen” is equally curtailed. Patel, 334 F.3d at 1262 (citing cases); accord Dave v. Ashcroft, 363 F.3d 649, 652 (7th Cir.2004); cf. Mayard v. INS, 129 F.3d 438, 439 (8th Cir.1997) (applying the IIRIRA’s transitional rules). In other words, “where a final order of removal is shielded from judicial review” by a provision in § 1252(a)(2), “so, too, is [the BIA’s] refusal to reopen that order.” Patel, 334 F.3d at 1262. Applying this principle to the case at hand, it is clear that § 1252 deprives this court of jurisdiction over the BIA’s denial of Assaad’s motion to reopen. In its final order of removal, the BIA affirmed the IJ’s finding that Assaad is not entitled to a good-faith marriage waiver of his re-movability under § 1186a(c)(4)(B). There is no question that, had Assaad directly petitioned this court for review of the BIA’s final order, § 1252(a)(2)(B)(ii) would have barred our jurisdiction over his appeal. See Urena-Tavarez v. Ashcroft, 367 F.3d 154, 160 (3d Cir.2004) (holding that “[sjeetion 1252(a)(2)(B)(ii) clearly precludes judicial review of decisions under section 1186a(c)(4)” because the statute specifies that those decisions are purely discretionary). Therefore, because this court would not have had the authority to review a direct petition, we hold that As-saad cannot manufacture jurisdiction simply by petitioning this court to review the BIA’s denial of his motion to reopen. Nevertheless, before we may conclude that the IIRIRA’s permanent rules completely foreclose our jurisdiction over Assaad’s motion to reopen, we must first determine whether the ineffective-assistance-of-counsel argument in his motion to reopen presents a “substantial constitutional claim.” See Balogun v. Ashcroft, 270 F.3d 274, 278 n. 11 (5th Cir.2001) (observing that courts “retain jurisdiction to consider ... substantial constitutional claims,” even when the jurisdiction-stripping provisions of immigration law purport to deprive the courts of jurisdiction); see also Dave, 363 F.3d at 652. This circuit has yet to decide whether an alien has a constitutional right to effective counsel in removal proceedings, see, e.g., Miranda-Lores v. INS, 17 F.3d 84, 85 n. 1" } ]

[ { "docid": "1833254", "title": "", "text": "we lack jurisdiction to hear Ibrahimi’s appeal. See 8 U.S.C. § 1252(a)(2)(B) (outlining the limitations on this court’s jurisdiction to hear denials of discretionary relief). Ibrahimi counters that his case only involves the agency’s determination as to his statutory eligibility for the waiver — i.e., whether he entered his marriage in “good faith.” Ibrahimi argues that since eligibility for discretionary relief is a question of law or the application of law to facts, this court retains jurisdiction to review the decision to deny the waiver on the basis that he failed to establish a good-faith marriage. We agree with Ibrahimi. In the context of good-faith-marriage waivers, our jurisdiction depends on the nature of the BIA’s decision under § 1186a(c)(4). This court has held that “[w]e have jurisdiction to consider what the legal standard is for the good-faith determination and,to review the threshold determination of whether the credited evidence meets the good-faith standard.” Nguyen, 522 F.3d at 855; cf. Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir.2008) (“We may review the non-discretionary determinations underlying [eligibility for cancellation of removal], such as the predicate legal question whether the IJ properly applied the law to the facts in determining an individual’s eligibility.”). While a good- faith-marriage determination certainly involves some fact-finding, ultimately the conclusion is governed by a legal standard. Because the question of whether a marriage was entered into in good faith is a “predicate legal question” that amounts to a “nondiscretionary determination[ ] underlying the denial of relief,” then, this court has jurisdiction to review whether Ibrahimi met the legal standard necessary to establish his eligibility for the waiver. Nguyen, 522 F.3d at 854-55. As per Nguyen, our jurisdiction is limited to this legal determination and does not extend to the underlying factual determination. In an effort to preclude this court from exercising jurisdiction, the Government relies on Suvorov v. Gonzales, 441 F.3d 618 (8th Cir.2006) and Ignatova v. Gonzales, 430 F.3d 1209 (8th Cir.2005), two cases where we found jurisdiction lacking. While these cases do discuss jurisdiction in the context of good-faith-marriage waivers, we find them distinguishable. In both" }, { "docid": "1833257", "title": "", "text": "therefore, did not enter into the marriage in good faith. Therefore, following Suvorov, we lack jurisdiction to review the denial of the waiver.”). These cases do not prevent us from asserting jurisdiction to make a determination of what constitutes a good-faith marriage and whether the credited evidence meets that standard. In this case, the BIA’s denial of Ibrahimi’s waiver was not premised upon a finding that the evidence of the bona fide nature of his marriage was incredible. In fact, as discussed above, the agency did not make a specific credibility finding with regard to his testimony or his evidence at all, with the exception of expressly crediting Urgento’s testimony. Ibrahimi is, instead, asking this court to review whether the BIA properly applied the law to the facts in concluding that his credited evidence failed to meet the good-faith legal standard and thus properly prevented him from establishing his eligibility for discretionary relief under § 1186a(c)(4)(B). We have jurisdiction to consider that question. See 8 U.S.C. § 1252(a)(2)(D) (preserving jurisdiction over “constitutional claims or questions of law”); Nguyen, 522 F.3d at 855. C. Good-Faith-Marriage Determination Having established that jurisdiction is proper, we review the agency’s conclusion of law — that Ibrahimi’s credited evidence did not satisfy the legal standard of what constitutes a good-faith marriage— de novo. See Iyamba v. INS, 244 F.3d 606, 607-08 (8th Cir.2001) (per curiam). In determining whether an alien has entered into a good-faith marriage, “the cen tral question is whether [the couple] intended to establish a life together at the time they were married.” Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir.2004); Cho v. Gonzales, 404 F.3d 96, 102 (1st Cir.2005); see also Matter of Laureano, 19 I. & N. Dec. 1, *3 (BIA 1983). Criteria that the agency may consider to gauge this intent and the “commitment of both parties to the marital relationship” is set forth in the regulations. 8 C.F.R. § 1216.5(e)(2); see also Nyonzele v. INS, 83 F.3d 975, 980 (8th Cir.1996). This evidence may include “(i) [documentation relating to the degree to which the financial assets and liabilities" }, { "docid": "22125580", "title": "", "text": "or permanent resident parent and the alien was not at fault in failing to meet the requirements of paragraph (l)[for joint filing]. In determining extreme hardship, the Attorney General shall consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis. In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General. The Attorney General shall, by regulation, establish measures to protect the confidentiality of information concerning any abused alien spouse or child, including information regarding the whereabouts of such spouse or child. . Although § 1186a(c)(4) is entitled \"Hardship Waiver,” only the first of the three subsections relates to a \"hardship” that would result from removal. The others relate to good faith marriages ending in dissolution and to battered spouses, respectively. The three subsections provide entirely different grounds for excusing compliance with the requirement of § 1186a(c)(l) that the petition must be jointly signed and that the spouse of the applicant must appear for a personal interview. . We recognize that two other circuits have reached a different result. See Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004); Urena-Tavarez v. Ashcroft, 367 F.3d 154, 161 (3d Cir.2004). However, for the reasons explained above, we disagree with the suggestion that all determinations under § 1186a(c)(4) are left to the Attorney General's \"pure discretion.” Urena-Tavarez, 367 F.3d at 160. The statutory provision is mani festly to the contrary, requiring a variety of factual and legal determinations devoid of any need for subjective decisions. . Further evidence that the first reference to the Attorney General's discretion does not eliminate our review of decisions under § 1186a(c)(4) is provided by all the other legal and factual determinations called for by this provision. For example, while the BIA based its denial on the lack of a good faith marriage, other § 1186a(c)(4)(B) determinations also involve questions of law or fact that would" }, { "docid": "2956893", "title": "", "text": "General’s discretion because the determination of what constitutes a manager is not a discretionary decision, but rather one governed by an objective legal standard. Id. at 895-96. Accordingly, because of the “good and sufficient cause language” and the definition of manager at § 1101(a)(44), the court held that § 1252(a)(2)(B)(ii) did not strip courts of jurisdiction to review decisions made by the Attorney General pursuant to § 1155. In a vigorous and, in our view, persuasive dissent, Judge Tallman rejected much of the ANA International majority’s interpretation of § 1155 and the provision’s interaction with § 1252(a)(2)(B)(ii). He wrote that “[a] common sense reading of the language of § 1155, in conjunction with § 1252(a)(2)(B)(ii), leads ineluctably to the conclusion that the Attorney General’s visa revocation decisions are discretionary.” Id. at 896 (Tallman, J., dissenting). Section 1155 did not limit revocations to good and sufficient cause, he reasoned, but rather to circumstances in which the Attorney General deems there to be good and sufficient cause. Id. at 897 (Tallman, J., dissenting). “If the statutory language ‘may, at any time, for what he deems to be’ indicates a ‘purely legal and hence non-discretionary’ decision such that review of the decision is permitted ... it is difficult to contemplate what would be an unre-viewable discretionary act.” Id. at 897-898 (Tallman, J., dissenting). C. Although this is a question of first impression for this Court, we have nevertheless established general standards to determine when a decision is unreviewable under § 1252(a)(2)(B)(ii). In Urena-Tavarez v. Ashcroft, 367 F.3d 154 (3d Cir.2004), we considered whether § 1252(a)(2)(B)(ii) precluded courts from reviewing the Attorney General’s denial of a waiver under 8 U.S.C. § 1186a(c)(4). Upon considering the language of § 1186a(c)(4), we held that it “explicitly assigns to the Attorney General the discretion to ‘remove the conditional basis of the permanent resident status for an alien’ who demonstrates one of the three qualifications for waivers.” Id. at 159. Significantly, unlike § 1155, which is devoid of any legal requirements, § 1186a(c)(4) contains several. Nevertheless, in concluding that this statute still vests unreviewable discretion in the Attorney" }, { "docid": "23505116", "title": "", "text": "471, 486, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). Section 1186a(c)(4) explicitly provides that “[t]he Attorney General, in the Attorney General’s discretion, may” waive the requirements of § 1186a(c)(l) for eligible aliens. See 8 U.S.C. § 1186a(c)(4) (emphasis added). The statute further provides that “[t]he determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.” Id. (emphasis added). In Atsilov v. Gonzales we held that we lack jurisdiction to review the decision to deny a good faith marriage waiver where eligibility for the waiver has been established but the agency nevertheless has exercised its discretion to deny relief. 468 F.3d at 116. Here, unlike in Atsilov, petitioner was not deemed eligible for a waiver because her first marriage, the IJ concluded, was not entered into in good faith. She now challenges that determination of ineligibility. Whether such determinations are insulated from judicial review is an issue that has divided our sister Circuits. Compare Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004) (holding that determination of eligibility for a waiver cannot be reviewed), and Urena-Tavarez v. Ashcroft, 367 F.3d 154, 159-60 (3d Cir.2004) (same), with Nguyen v. Mukasey, 522 F.3d 853, 855 (8th Cir.2008) (holding that determination of eligibility for a waiver is not discretionary and therefore is subject to review); Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1142 (9th Cir.2005) (same); Cho v. Gonzales, 404 F.3d 96, 101-02 (1st Cir.2005) (same). We need not choose a side in this debate, however, because the specific nature of petitioner’s claim clearly precludes judicial review. II. Regardless of the disagreement among our sister Circuits on the Attorney General’s discretion to determine eligibility for waivers under 8 U.S.C. § 1186a(c)(4), the statute does clearly commit to the Attorney General’s “sole discretion” the determination of “what evidence is credible and the weight to be given that evidence.” 8 U.S.C. § 1186a(c)(4); see Cho, 404 F.3d at 101 (“[W]e certainly have no quarrel with the conclusion that § 1252(a)(2)(B)(ii) precludes court review of petitions [directed at the Attorney General’s credibility determinations and" }, { "docid": "22125561", "title": "", "text": "contended that his was a good faith marriage. The government contends that the first sentence of the statute bars review of all determinations made under § 1186a(c)(4). Our decision is governed by our prior holdings: Unless the disputed determination is purely discretionary — unless there are no questions of fact or law at issue — judicial review is not precluded. See Spencer Enters., 345 F.3d at 690 (holding that under § 1252(a)(2)(B)(ii) we retain jurisdiction to review determinations of the Attorney General unless they are “pure[ly] discretionary]” or “entirely within his [ ] judgment”); see also Hernandez v. Ashcroft, 345 F.3d 824, 833-34 (9th Cir.2003) (holding that a determination of whether an alien suffered “extreme cruelty” is a reviewable legal and factual determination). Petitions for statutory waivers under § 1186a(e)(4)(B) on the basis of a good faith marriage involve legal and factual questions that are not subject to the pure discretion of the IJ or BIA. See Nakamoto v. Ashcroft, 363 F.3d 874, 880 (9th Cir.2004) (holding that marriage fraud involves reviewable legal and factual questions); see also Damon v. Ashcroft, 360 F.3d 1084, 1089 (9th Cir.2004) (describing legal and factual issues involved in good faith marriage determinations). “[T]he Attorney General cannot legally make a judgment [about whether a petitioner’s marriage was in good faith] solely according to the dictates of his or her conscience.” Nakamoto, 363 F.3d at 881. Thus, we are generally free to review BIA decisions that marriages were not entered into in good faith, and we retain jurisdiction to do so when such decisions constitute the basis for a denial of a statutory waiver under § 1186a(c)(4). The second statutory reference to the Attorney General’s discretion relied on by the government provides the basis for its contention that courts are precluded from reviewing a particular aspect of the BIA’s decisions under § 1186a(c)(4): adverse credibility determinations. Although credibility determinations are generally reviewable in immigration law, see, e.g., Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 910 (9th Cir.2004), the government points to language in the final paragraph of § 1186a(c)(4) stating that “the determination of what evidence is" }, { "docid": "8576684", "title": "", "text": "requirement, § 1186a(c)(4)(A). Singh, 591 F.3d at 1195 & n. 3. Section 1186a(c)(4) states that \"[t]he determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.” Congress removed federal courts’ \"jurisdiction to review a decision of the Attorney General 'the authority for which is specified under [the INA] to be in the discretion of the Attorney General.' ” Kucana v. Holder, -U.S. -, 130 S.Ct. 827, 834, -L.Ed.2d- (2010) (quoting § 1252(a)(2)(B)(ii)). Because § 1186a(c)(4) places credibility determinations in the discretion of the Attorney General, the jurisdiction-stripping provision of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) applies. See § 1252(a)(2)(B)(ii). The majority of our sister courts have held that we lack jurisdiction to review credibility determinations in this context. See, e.g., Ibrahimi v. Holder, 566 F.3d 758, 764 (8th Cir.2009); Contreras-Salinas v. Holder, 585 F.3d 710, 713-14 (2d Cir.2009); Perales-Cumpean v. Gonzales, 429 F.3d 977, 984-85 & n. 6 (10th Cir.2005); Cho v. Gonzales, 404 F.3d 96, 101 (1st Cir.2005); Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004); Urena-Tavarez v. Ashcroft, 367 F.3d 154, 161 (3rd Cir.2004). Our holding to the contrary in Oropeza-Wong has been criticized by other circuits. See Contreras-Salinas, 585 F.3d at 714 n. 4; Perales-Cumpean, 429 F.3d at 985 n. 6. But, we are bound by our precedent. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). . Hammad also asks us to hold that the INS erred in determining that there was evidence of marriage fraud in violation of § 1154(c). Because Hammad did not appeal this ruling to the IJ or BIA, it is not exhausted, and we lack jurisdiction to address it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004)." }, { "docid": "4843419", "title": "", "text": "seeks review of a discretionary decision, we lack jurisdiction. To the extent she seeks review of questions of law or constitutional claims, we have jurisdiction. Johns does not deny that we lack jurisdiction to review the hardship-waiver decision, which the statute vests “in the Attorney General’s discretion.” 8 U.S.C. § 1186a(c)(4); Jebeili, 421 Fed.Appx. at 548-49. She claims instead to be challenging the Board’s decision that she is not eligible for a waiver because she did not marry Rekshan in good faith. But when it comes to deciding whether an alien is eligible for a waiver, the statute lodges “[t]he determination of what evidence is credible and the weight to be given that evidence ... within the sole discretion of the Attorney General.” 8 U.S.C. § 1186a(c)(4). Although we may evaluate certain questions of law wrapped up in the eligibility determination' — whether the Board applied the correct legal test for a good-faith marriage, for example — we do not have jurisdiction to review the Board’s assessment of the weight or credibility of the evidence. See Osei v. Holder, 462 Fed.Appx. 559, 560-61, No. 10-4051, 2012 WL 516162, at *1 (6th Cir. Feb. 16, 2012); see also Iliev v. Holder, 613 F.3d 1019, 1023-24 (10th Cir.2010); Contreras-Salinas v. Holder, 585 F.3d 710, 715 (2d Cir.2009); Alvarado de Rodriguez v. Holder, 585 F.3d 227, 233-34 (5th Cir.2009); Ibrahimi v. Holder, 566 F.3d 758, 764 (8th Cir.2009); Cho v. Gonzales, 404 F.3d 96, 101-02 (1st Cir.2005). But see Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1146 (9th Cir.2005) (concluding that Congress intended the provision to function “as a requirement that immigration officials liberally admit evidence, not as a bar to judicial review”). The problem for Johns is that she aims the bulk of her fire not at the legal standards the Board applied but at its assessment of her credibility and the way it weighed the evidence. Consider these arguments: (1) the immigration judge did not fully consider certain pieces of evidence, such as photographs of the couple’s seven-year courtship, their joint tax return, her consistent preference for older men and the five" }, { "docid": "12943601", "title": "", "text": "(8th Cir.2008); Cho v. Gonzales, 404 F.3d 96, 101-02 (1st Cir.2005); Roldan v. Att‘y Gen. of U.S., 2010 WL 1980222 (3d Cir.2010) (unpublished); Roos v. U.S. Att’y Gen., 167 FedAppx. 752 (11th Cir.2006) (unpublished). In an effort to suggest otherwise, the government cites us to Urena-Tavarez v. Ashcroft, 367 F.3d 154 (3d Cir.2004), and Assaad v. Ashcroft, 378 F.3d 471 (5th Cir. 2004). In the government’s view, these cases show that the Third and Fifth Circuits believe that courts may never review the BIA’s hardship waiver decisions — even when those decisions implicate questions of law or constitutional claims. What the government overlooks, however, is that both of the cases it cites and relies on so heavily predate § 1252(a)(2)(D) and that statute’s clarification that courts retain authority to review legal and constitutional questions. And telling us what the law looked like before § 1252(a)(2)(D) tells us but little about how the law looks after § 1252(a)(2)(D). It’s sort of like offering an essay on the rules of baseball before the introduction of the Knickerbocker Rules: interesting as an historical matter, maybe, but not at all descriptive of the world we inhabit today. Not only does the government seek to rely on these outdated decisions; it also fails to address (or cite) more recent decisions from those same circuits that postdate § 1252(a)(2)(D) and acknowledge the authority of courts to review questions of law and constitutional claims. See Alvarado de Rodriguez, 585 F.3d at 234; Roldan, 2010 WL 1980222 at *1. Indeed, we have not been directed to a single case decided after § 1252(a)(2)(D)’s enactment remotely suggesting, as the government would have it, that legal questions and constitutional claims fall outside our purview. Where the government mistakenly seeks to limit our jurisdiction, Mr. Iliev mistakenly seeks to expand it. Citing the Ninth Circuit’s decision in Oropezar-Wong v. Gonzales, 406 F.3d 1135, 1143-47 (9th Cir. 2005), he argues that we may review not just petitions raising legal questions and constitutional claims but also ones challenging the BIA’s credibility determinations. We readily admit Oropeza-Wong can be read to suggest as much," }, { "docid": "21723055", "title": "", "text": "(1st Cir.2000) (adopting and applying a legal standard— “whether, at the time of the marriage, there was an intent to establish a life together” — in reviewing the Attorney General’s determination that the petitioner failed to establish that he had married in good faith) (citation and quotation marks omitted); see also, e.g., Damon v. Ashcroft, 360 F.3d 1084, 1088-89 (9th Cir.2004) (concluding, in light of governing legal principles and without discussion of any jurisdictional issues, that there was no substantial evidence to support the Attorney General’s determination that an alien was ineligible for § 1186a(e)(4)(B) relief because she failed to prove that she had married in good faith). It also is a question whose resolution is informed by objective regulatory criteria set forth at 8 C.F.R. § 216.5(e)(2) (listing factors to be considered in assessing whether a marriage was entered into in good faith). Cf Bernal-Vallejo, 195 F.3d at 62 (observing that inquiries guided by objective statutory criteria are not discretionary). Our jurisdictional inquiry does not end with our decision to treat the Attorney General’s eligibility ruling, and not his denial of the hardship waiver, as the relevant “decision or action” for purposes of assessing the effect of 8 U.S.C. § 1252(a)(2)(B)(ii) on Cho’s petition. The Attorney General has a fallback position: that his eligibility rulings are themselves discretionary decisions or actions shielded from substantial evidence review under § 1252(a)(2)(B)(ii). At first, this argument seems implausible in light of the authority, set forth in the preceding paragraph, suggesting that the decision whether an alien has married in good faith is not completely discretionary but is, rather, a decision with a legal component that helps define the class of aliens eligible for hardship waivers. But as the Attorney General correctly points out, 8 U.S.C. § 1186a(e)(4)(B) not only commits to the Attorney General’s discretion the decision whether to grant eligible aliens hardship waivers, but it also contains the provision which states: “In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to" }, { "docid": "8576683", "title": "", "text": "for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. . At Hammad's first removal hearing, the IJ ruled that Hammad did not qualify for a waiver to the joint petition requirements, in part because he was not divorced, and issued a final order of deportation. Hammad filed a motion to reopen for ineffective assistance of counsel, which the BIA granted on March 26, 2004. Sometime between July 23, 2003 and June 21, 2005, Hammad finalized his divorce from Fierro and married Rula Yaghmour. . A reasonable question can be raised as to whether we have jurisdiction to review adverse credibility determinations under § 1186a, even though we do have jurisdiction to review determinations regarding whether the alien has demonstrated that \"extreme hardship would result” absent a waiver of the joint petition requirement, § 1186a(c)(4)(A). Singh, 591 F.3d at 1195 & n. 3. Section 1186a(c)(4) states that \"[t]he determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.” Congress removed federal courts’ \"jurisdiction to review a decision of the Attorney General 'the authority for which is specified under [the INA] to be in the discretion of the Attorney General.' ” Kucana v. Holder, -U.S. -, 130 S.Ct. 827, 834, -L.Ed.2d- (2010) (quoting § 1252(a)(2)(B)(ii)). Because § 1186a(c)(4) places credibility determinations in the discretion of the Attorney General, the jurisdiction-stripping provision of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) applies. See § 1252(a)(2)(B)(ii). The majority of our sister courts have held that we lack jurisdiction to review credibility determinations in this context. See, e.g., Ibrahimi v. Holder, 566 F.3d 758, 764 (8th Cir.2009); Contreras-Salinas v. Holder, 585 F.3d 710, 713-14 (2d Cir.2009); Perales-Cumpean v. Gonzales, 429 F.3d 977, 984-85 & n. 6 (10th Cir.2005); Cho v. Gonzales, 404 F.3d 96, 101 (1st" }, { "docid": "21723056", "title": "", "text": "eligibility ruling, and not his denial of the hardship waiver, as the relevant “decision or action” for purposes of assessing the effect of 8 U.S.C. § 1252(a)(2)(B)(ii) on Cho’s petition. The Attorney General has a fallback position: that his eligibility rulings are themselves discretionary decisions or actions shielded from substantial evidence review under § 1252(a)(2)(B)(ii). At first, this argument seems implausible in light of the authority, set forth in the preceding paragraph, suggesting that the decision whether an alien has married in good faith is not completely discretionary but is, rather, a decision with a legal component that helps define the class of aliens eligible for hardship waivers. But as the Attorney General correctly points out, 8 U.S.C. § 1186a(e)(4)(B) not only commits to the Attorney General’s discretion the decision whether to grant eligible aliens hardship waivers, but it also contains the provision which states: “In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.” In the Attorney General’s- view, this “sole discretion” provision effectively describes all that goes into a threshold eligibility ruling under 8 U.S.C. § 1186a(c)(4)(B), and thus renders all such rulings “decision(s) or action(s)” textually committed to the Attorney General’s unre-viewable discretion per 8 U.S.C. § 1252(a)(2)(B)(ii). The Attorney General says that the Third Circuit has accepted this rqading of the statute. See Urenar-Tavarez v. Ashcroft, 367 F.3d 154, 159-61 (3d Cir.2004); see also Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004) (following Urena-Tavarez); Randhawa v. Ashcroft, 121 Fed.Appx. 612, 2005 WL 221502 (6th Cir. Jan.31, 2005) (unpublished opinion) (same). Although Urena-Tavarez and the cases which follow it use sweeping language, they do not unequivocally hold that 8 U.S.C. § 1252(a)(2)(B)(ii) bars all court challenges to determinations by the Attorney General that an alien has failed to prove that she married in good faith and thus is ineligible for discretionary relief under 8 U.S.C. § 1186a(c)(4)(B). Of the three opinions, only" }, { "docid": "22125560", "title": "", "text": "a brief introduction to the section as a whole is useful. Section 1186a governs the process by which an alien who marries a U.S. citizen obtains permanent residence status on a conditional basis by virtue of that marriage, and the procedures by which an alien may have the conditional basis of that status removed. Under this section, an alien may become a permanent resident after two years by jointly filing with the alien’s citizen spouse a petition for removal of the conditional basis. § 1186a(c)(l). When (1) joint filing is no longer possible under the statute because of a judicial termination of the marriage, (2) such filing is impractical because the citizen-spouse is a domestic abuser, or (3) removal of the alien would create extreme hardship, the alien may seek a statutory waiver of the joint filing requirement. § 1186a(c)(4). The first two exceptions apply, however, only if the marriage was entered into in good faith. Because his marriage terminated in dissolution less than two years after it began, Oropeza requested such a waiver and contended that his was a good faith marriage. The government contends that the first sentence of the statute bars review of all determinations made under § 1186a(c)(4). Our decision is governed by our prior holdings: Unless the disputed determination is purely discretionary — unless there are no questions of fact or law at issue — judicial review is not precluded. See Spencer Enters., 345 F.3d at 690 (holding that under § 1252(a)(2)(B)(ii) we retain jurisdiction to review determinations of the Attorney General unless they are “pure[ly] discretionary]” or “entirely within his [ ] judgment”); see also Hernandez v. Ashcroft, 345 F.3d 824, 833-34 (9th Cir.2003) (holding that a determination of whether an alien suffered “extreme cruelty” is a reviewable legal and factual determination). Petitions for statutory waivers under § 1186a(e)(4)(B) on the basis of a good faith marriage involve legal and factual questions that are not subject to the pure discretion of the IJ or BIA. See Nakamoto v. Ashcroft, 363 F.3d 874, 880 (9th Cir.2004) (holding that marriage fraud involves reviewable legal and factual" }, { "docid": "23505117", "title": "", "text": "Cir.2004) (holding that determination of eligibility for a waiver cannot be reviewed), and Urena-Tavarez v. Ashcroft, 367 F.3d 154, 159-60 (3d Cir.2004) (same), with Nguyen v. Mukasey, 522 F.3d 853, 855 (8th Cir.2008) (holding that determination of eligibility for a waiver is not discretionary and therefore is subject to review); Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1142 (9th Cir.2005) (same); Cho v. Gonzales, 404 F.3d 96, 101-02 (1st Cir.2005) (same). We need not choose a side in this debate, however, because the specific nature of petitioner’s claim clearly precludes judicial review. II. Regardless of the disagreement among our sister Circuits on the Attorney General’s discretion to determine eligibility for waivers under 8 U.S.C. § 1186a(c)(4), the statute does clearly commit to the Attorney General’s “sole discretion” the determination of “what evidence is credible and the weight to be given that evidence.” 8 U.S.C. § 1186a(c)(4); see Cho, 404 F.3d at 101 (“[W]e certainly have no quarrel with the conclusion that § 1252(a)(2)(B)(ii) precludes court review of petitions [directed at the Attorney General’s credibility determinations and the weight he gave to the evidence that he credited].”). Because we conclude that petitioner’s claims challenge only credibility determinations and the weight given to evidence by the IJ and BIA, we lack jurisdiction over her claims. Petitioner claims that the IJ “failed to weigh the material evidence” showing that her marriage to Arroyo was entered into in good faith. Pet’rs Br. iv, 6. In particular, she argues that the IJ failed to consider certain evidence, including (1) the § 1182(i) waiver she obtained in 1995, (2) evidence of a joint bank account in her name and her husband’s, and (3) certain affidavits and testimony. 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). Here, the record reveals that the agency considered all of petitioner’s evidence but either found it lacking in credibility or outweighed by evidence suggesting petitioner’s marriage was a sham. Although the IJ did not mention" }, { "docid": "22429326", "title": "", "text": "basis of the permanent-residence status. 8 U.S.C. § 1186a(c)(3)(B). However, the conditional permanent-resident status shall be terminated if the Attorney General determines that the marriage “was entered into for the purpose of procuring an alien’s admission as an immigrant.” 8 U.S.C. § 1186a(b)(l). The alien is then entitled to request review of that adverse determination in a proceeding to remove the alien from the U.S., and “the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence” that the marriage was entered to procure the alien’s admission. 8 U.S.C. § 1186a(b)(2). An alien may also seek a hardship waiver to “remove the conditional basis of the permanent resident status” by demonstrating inter alia that “the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated ... and the alien was not at fault in failing to meet the requirements” for removal of the conditional basis. 8 U.S.C. § 1186a(c)(4). “Where the BIA adopts the IJ’s reasoning, the court reviews the IJ’s decision directly to determine whether the decision of the BIA should be upheld on appeal.” Gilaj v. Gonzales, 408 F.3d 275, 282-83 (6th Cir.2005) (citing Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003)). On appeal, we review to determine whether substantial evidence supports the factual findings underlying the IJ’s decision regarding the nature of the marriage between Huang and Higgins. See Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1147-48 (9th Cir.2005); see also Acheampong v. Keisler, 250 Fed.Appx. 158, 160 (6th Cir.2007). A reviewing “court may reverse the BIA’s determination if the evidence ‘not only supports a contrary conclusion, but indeed compels it.’ ” Gilaj, 408 F.3d at 283 (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003)). “Under this standard, ‘[a] factual determination by the Board that an alien’s marriage was entered for the purpose of gaining entry into the United States is conclusive if it is supported by reasonable, substantial, and probative evidence in the record considered as a whole.’ ” Acheampong, 250 Fed.Appx. at 160 (quoting Bazzi v. Ashcroft," }, { "docid": "8576674", "title": "", "text": "affirm the IJ’s adverse credibility finding. C Second, Hammad argues that the IJ erred in affirming the INS’s denial of Hammad’s request for a waiver of the joint petition requirement under § 1186a(c)(4)(B), which allows the Attorney General to waive requirements for specified good faith marriages that have terminated. Hammad argues that the evidence in the record would not compel a reasonable fact-finder to find that Ham-mad’s marriage was not bona fide. Again, we must reject this claim in light of the correct standard of review. We held in Oropeza-Wong v. Gonzales, 406 F.3d 1135 (9th Cir.2005), that the substantial evidence standard governs our review of waiver determinations under § 1186a, and the court “must affirm the BIA’s order when there is such relevant evidence as reasonable minds might accept as adequate to support it, even if it is possible to reach a contrary result on the basis of the evidence.” Id. at 1147; Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir.2004) (‘Whether [the alien] entered into the qualifying marriage in good faith is an intrinsically fact-specific question reviewed under the substantial evidence standard.”). Given the numerous inconsistencies in the testimony, Hammad failed to carry this burden. Because the IJ’s and BIA’s conclusion that Hammad’s marriage to Fierro was fraudulent was based on “such relevant evidence as reasonable minds might accept as adequate to support it,” Oropeza-Wong, 406 F.3d at 1147, there was substantial evidence to support the BIA’s denial of Hammad’s 1998 waiver petition. D Third, even if the BIA had not erred in upholding the INS’s denial of his waiver request, Hammad suggests that the IJ and BIA erred in failing to consider a waiver to the joint petition requirement based on extreme hardship. This argument also fails. Hammad did not file a waiver petition with the INS based on extreme hardship, and could not seek such a waiver from the IJ in the first instance. See Matter of Anderson, 20 I. & N. Dec. 888, 892 (BIA 1994) (“The immigration judge only has jurisdiction to review the denial of a waiver application.”); 8 C.F.R. § 216.5(e)-(f)." }, { "docid": "22125581", "title": "", "text": "requirement of § 1186a(c)(l) that the petition must be jointly signed and that the spouse of the applicant must appear for a personal interview. . We recognize that two other circuits have reached a different result. See Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004); Urena-Tavarez v. Ashcroft, 367 F.3d 154, 161 (3d Cir.2004). However, for the reasons explained above, we disagree with the suggestion that all determinations under § 1186a(c)(4) are left to the Attorney General's \"pure discretion.” Urena-Tavarez, 367 F.3d at 160. The statutory provision is mani festly to the contrary, requiring a variety of factual and legal determinations devoid of any need for subjective decisions. . Further evidence that the first reference to the Attorney General's discretion does not eliminate our review of decisions under § 1186a(c)(4) is provided by all the other legal and factual determinations called for by this provision. For example, while the BIA based its denial on the lack of a good faith marriage, other § 1186a(c)(4)(B) determinations also involve questions of law or fact that would be reviewable under our precedent, such as whether the alien's marriage was \"qualifying” or had been \"terminated” or whether the alien was legally \"at fault” for failing to meet the joint filing requirement. While neither of the other two exceptions for hardship waivers, § 1186a(c)(4)(A) and (C), is involved in this case, we note that those determinations, too, will usually require factual and legal determinations. See, e.g., Hernandez, 345 F.3d at 833-35 (reviewing the factual and legal determinations underlying an \"extreme cruelty” finding); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002) (reviewing a legal determination underlying an \"extreme hardship” decision). . The statutory history recounted here is well documented in the secondary literature. Two particularly good sources, incorporated into the discussion below, are Lesley E. Orloff & Janice V. Kaguyutan, Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, 10 Am. U.J. Gender Soc. Pol'y & L. 95 (2001) and Sarah M. Wood, Note, VAWA's Unfinished Business: The Immigrant Women Who Fall Through the Cracks, 11 Duke J." }, { "docid": "1053382", "title": "", "text": "proper qualifying marriage, he must terminate the permanent resident status of the alien. 8 U.S.C. § U86a(b)(l). That termination was accompanied by the INS charge, sustained by the IJ, that Ignatova was deportable under 8 U.S.C. § 1227(a)(l)(D)(l). Because the record supports the finding of removability and because we lack jurisdiction to review the denial of a hardship waiver or the denial of voluntary departure, see 8 U.S.C. § 1229c(f), we affirm the order of removal and deny the petition for review. . The INS was abolished and its functions assumed by the Department of Homeland Security on March 1, 2003. . In a letter submitted pursuant to Fed. R.App. Proc. 28(j), Ignatova urges that the court consider her claims for withholding of removal and relief under the Convention, but neither claim was argued in her appeal brief and they were therefore waived. See Harstad v. First American Bank, 39 F.3d 898, 905 (8th Cir.1994). . We recognize that some courts have found jurisdiction to review an eligibility ruling under 1186a(c)(4)(B) which requires a threshold determination of whether there was a good faith marriage. See Cho v. Gonzales, 404 F.3d 96, 102 (1st Cir.2005). The focus here was on an adverse credibility determination, however, so our case more closely resembles Urena-Tavarez v. Ashcroft, 367 F.3d 154, 159-61 (3d Cir.2004) (holding that the denial of waivers under 8 U.S.C. § 1186a(c)(4) is not subject to judicial review). Moreover, we would have to take note of the substantial evidence that Ig-natova and Wells did not enter marriage in good faith if we had jurisdiction." }, { "docid": "1833255", "title": "", "text": "for cancellation of removal], such as the predicate legal question whether the IJ properly applied the law to the facts in determining an individual’s eligibility.”). While a good- faith-marriage determination certainly involves some fact-finding, ultimately the conclusion is governed by a legal standard. Because the question of whether a marriage was entered into in good faith is a “predicate legal question” that amounts to a “nondiscretionary determination[ ] underlying the denial of relief,” then, this court has jurisdiction to review whether Ibrahimi met the legal standard necessary to establish his eligibility for the waiver. Nguyen, 522 F.3d at 854-55. As per Nguyen, our jurisdiction is limited to this legal determination and does not extend to the underlying factual determination. In an effort to preclude this court from exercising jurisdiction, the Government relies on Suvorov v. Gonzales, 441 F.3d 618 (8th Cir.2006) and Ignatova v. Gonzales, 430 F.3d 1209 (8th Cir.2005), two cases where we found jurisdiction lacking. While these cases do discuss jurisdiction in the context of good-faith-marriage waivers, we find them distinguishable. In both Suvorov and Ignatova, the agency’s denials of good-faith-marriage waivers were premised on purely factual determinations. In each case, an adverse credibility determination drove the agency’s conclusion that there was no good-faith marriage. See Nguyen, 522 F.3d at 854 n. 2 (discussing Suvorov and Ignatova). Congress has explicitly provided that the BIA has “the sole discretion” to determine “what evidence is credible and the weight to be given that evidence” in determining whether a good-faith-marriage waiver is warranted, 8 U.S.C. § 1186a(c)(4), and Nguyen recognized this limitation. Nguyen, 522 F.3d at 854-55. In other words, consistent with the statute’s language, Suvorov and Ignatova prevent us from exercising jurisdiction to pass upon the credibility and weight of the evidence that a petitioner has presented in an attempt to establish eligibility for a waiver of the joint-filing requirement. Id.; see also Ebrahim v. Gonzales, 471 F.3d 880, 883-84 (8th Cir. 2006) (“Here, the IJ, as in Suvorov, determined that [the alien] was not eligible for waiver after finding [the alien and his former wife] were not credible and," }, { "docid": "12943600", "title": "", "text": "course of evaluating hardship waiver requests, implicate constitutional claims or legal questions. So, for example, when the Attorney General’s determination that an alien is ineligible for a hardship waiver rests on an error of law (and not on credibility determinations or the weight given to competing evidence), we may say so and grant the petition for review. But the ultimate decision on remand whether or not to grant a waiver, after the petitioner’s legal eligibility for the waiver has been established by a court of law, remains a discretionary one entrusted to the Attorney General. See, e.g., Contreras-Salinas v. Holder, 585 F.3d 710, 713 (2d Cir.2009) (“[W]e lack jurisdiction to review the decision to deny a good faith marriage waiver where eligibility for the waiver has been established but the agency nevertheless has exercised its discretion to deny relief.”). On these general principles, the courts of appeals are in harmony. See, e.g., Contreras-Salinas, 585 F.3d at 713-14; Alvarado de Rodriguez v. Holder, 585 F.3d 227, 234 (5th Cir.2009); Nguyen v. Mukasey, 522 F.3d 853, 854-55 (8th Cir.2008); Cho v. Gonzales, 404 F.3d 96, 101-02 (1st Cir.2005); Roldan v. Att‘y Gen. of U.S., 2010 WL 1980222 (3d Cir.2010) (unpublished); Roos v. U.S. Att’y Gen., 167 FedAppx. 752 (11th Cir.2006) (unpublished). In an effort to suggest otherwise, the government cites us to Urena-Tavarez v. Ashcroft, 367 F.3d 154 (3d Cir.2004), and Assaad v. Ashcroft, 378 F.3d 471 (5th Cir. 2004). In the government’s view, these cases show that the Third and Fifth Circuits believe that courts may never review the BIA’s hardship waiver decisions — even when those decisions implicate questions of law or constitutional claims. What the government overlooks, however, is that both of the cases it cites and relies on so heavily predate § 1252(a)(2)(D) and that statute’s clarification that courts retain authority to review legal and constitutional questions. And telling us what the law looked like before § 1252(a)(2)(D) tells us but little about how the law looks after § 1252(a)(2)(D). It’s sort of like offering an essay on the rules of baseball before the introduction of the Knickerbocker" } ]

[ { "docid": "18793210", "title": "", "text": "of the 1984 Act extends the terms of bankruptcy judges serving on July 10,1984, for four years after their last appointment or through October 1, 1986, whichever is later. The constitutional issue raised herein is whether these sections violate the separation of powers principle of the appointments clause of the Constitution, article II, section 2, clause 2. The raising of this issue comes as no surprise to the Court. Questions concerning the 1984 Act’s constitutionality surfaced essentially contemporaneous with its enactment and likely will remain until finally answered by the Supreme Court. Strong arguments can be made for and against the validity of the 1984 Act and have been made in this Court and others. Arguments very similar or identical to those presented in this case were advanced in In re Benny, 44 B.R. 581 (D.C.N.D.Cal.1984). In fact, all of the instant interve-nors filed memorandums in In re Benny. In a Memorandum Decision, the Honorable Robert H. Schnacke, United States District Court Judge for the Northern District of California, found that by virtue of the holdover provisions in sections 404(b) and (d) of the 1978 Act, as amended by the four extension statutes passed to maintain the continuity of the bankruptcy system prior to enactment of the 1984 Act, all incumbent bankruptcy judges remained in office at least until July 10, 1984. This finding was sufficient to resolve the case before Judge Schnacke without deciding whether section 121(e) of the 1984 Act is constitutionally infirm as an impermissible retroactive extension of the bankruptcy judges’ offices and an invalid exercise of legislative appointments. However, Judge Schnacke, in a thorough and well reasoned analysis, considered the constitutional question and alternatively concluded that section 121(e) was appropriate retroactive legislation, not inconsistent with the Constitution. Having given careful consideration to this analysis and the arguments presented by the debtor and intervenors in this ease, the Court concurs on the side of the 1984 Act’s constitutionality. Withdrawal of the reference on constitutional grounds is not appropriate. CHANGE OF VENUE The trustee’s motion for a change of venue was made to the bankruptcy court pursuant to" } ]

[ { "docid": "23084439", "title": "", "text": "logical starting point, we must first address Thompson’s challenge to the constitutionality of the undersigned’s appointment pursuant to Section 106 and Section 121 of the Bankruptcy Amendments and Federal Judgeship Act of 1984 (“1984 Amendments”), since we may go no further if we accept Thompson’s contention. The intent and effect of Sections 106 and 121 were to fill the vacuum in the Bankruptcy Court created by the expiration of the transition period under the Bankruptcy Reform Act of 1978 and the date of enactment of the 1984 Amendments, which were passed by Congress on June 29, 1984, but not signed by the President until July 10, 1984. These two sections also continued the terms of office of all sitting bankruptcy judges from the passage of the 1984 Amendments until their enactment, and continued the terms of all bankruptcy judges sitting on the date of enactment until at least October 1, 1986. Thompson asserts that no Bankruptcy Court or judges lawfully existed after June 27, 1984, and that the retroactive provisions passed by Congress to continue the terms of bankruptcy judges effectuated an appointment of those judges in violation of Article II, Section 2 of the U.S. Constitution (“the Appointments Clause”). While this latest challenge to the validity of the Bankruptcy Court system was very much in vogue at the time defendant raised it, it has since been rejected by all three of the District Courts which have considered it. In re Benny, 44 B.R. 581, 12 B.C.D. 495 (N.D.Ca.1984); In re Tom Carter Enterprises, 44 B.R. 605, 12 B.C.D. 536 (C.D. Ca.1984); In re Wasatch Factoring, Inc., Misc. No. B-0015W, (D.Utah Nov. 26, 1984). Given the scholarly treatment of this issue by both of the Courts which have published opinions on the subject, and our complete agreement with the result reached in all three cases, any additional discussion of the matter by this Court would be superfluous. We must next decide whether the Debtors’ complaint constitutes a “core” or “related to” proceeding under 28 U.S.C. § 157(b). That section states that bankruptcy judges may hear and enter final judgments as" }, { "docid": "1155773", "title": "", "text": "re Benny, 44 B.R. 581 (N.D.Calif.1984) (upholding the constitutionality of Sections 106(a) and 121(e)); In re Moens, No. 84-4109, slip op. (C.D.Ill. Feb. 21, 1985) (upholding the constitutionality of Sections 104(a), 106(a), and 121(e)); In re Whet, Inc., No. CA 84-2985-T, slip op. (D.Mass. Jan. 18, 1985) (upholding the constitutionality of the entire 1984 Act generally)); In re Bricker Systems, Inc., 44 B.R. 952 (Bankr.E.D.Wis.1984) (upholding the constitutionality of Section 106(a)); In re Wasatch Factoring, Inc., No. 84 PA-1013, slip op. (C.D.Utah Dec. 3, 1984 (upholding the constitutionality of Section 121(e)). Bankruptcy Judge David L. Crawford found Section 104(a) to be unconstitutional. See Associated Groceries of Nebraska Co-op, Inc. v. Nabisco, 46 B.R. 173 (Bankr.D.Neb.), Transcript of Proceedings, Jan. 21, 1985, at 16-21. . Relevant parts of Section 157 provide as follows: (a) Each district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district. (b)(1) Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title. (c)(1) A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. Section 158 provides in part as follows: (a) The district courts of the United States shall have jurisdiction to hear appeals from final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and decrees, of bankruptcy" }, { "docid": "18758732", "title": "", "text": "62 B.R. at 442-47; cf. In re Davis, 899 F.2d 1136, 1140 n. 9 (11th Cir.1990) (suggesting that the bankruptcy courts may have authority to preside over fraudulent conveyance and preference actions under Article III only where the alleged recipient of the fraudulent conveyance or preference has filed a claim against the debtor’s estate). Accordingly, notwithstanding the fact that preferential and fraudulent transfer proceedings may involve private rights, we hold that the bankruptcy court had jurisdiction under Article III to adjudicate the trustee’s suit. II. The Constitutionality of the Bankruptcy Judge’s Appointment In 1978, Congress overhauled the bankruptcy courts by replacing the old referee system with a new Article I bankruptcy court of substantially expanded jurisdiction. The 1978 Act provided that bankruptcy judges would be appointed to 14-year terms by the nomination of the President and the consent of the Senate. The Act established a 4-and-!¿-year transition period, to end on March 31, 1984, during which time the existing bankruptcy courts were to be continued. Section 404(b) of the 1978 Act extended the term of bankruptcy judges serving prior to the Act until the end of the transition period or when their “successors take office.” Pub.L. No. 95-598, 92 Stat. 2683-84 (1978). As noted previously, the Supreme Court in Northern Pipeline struck down the jurisdictional grant of authority provided to the bankruptcy courts by the 1978 Bankruptcy Reform Act. In response, Congress adopted the Bankruptcy Amendments and Federal Judgeship Act (“BAFJA”) on July 10, 1984. Prior to the adoption of BAFJA, Congress extended the transition period established by the 1978 Act until June 27, 1984. BAFJA granted the bankruptcy courts jurisdiction over all core bankruptcy matters and established the courts as adjuncts to the district court for all non-core bankruptcy matters. Section 121(e) provided that “[t]he term of office of any bankruptcy judge who was serving on June 27,1984, is extended to and shall expire at the end of the day of enactment of this Act.” P.L. No. 98-353, 98 Stat. 346 (1984). Section 106(a) provided that “the term of office of a bankruptcy judge who is serving on the" }, { "docid": "3844691", "title": "", "text": "and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (“the 1984 Act”) was signed into law. Section 121(e) of that act retroactively extended the term of all bankruptcy judges serving on June 27,1984, to July 10,1984, the date the new act became law. Section 106(a) of the 1984 Act extended the terms of bankruptcy judges serving on July 10,1984, to the later of October 1, 1986, or four years from the date of their last appointment. The defendants claim that the terms of office of all bankruptcy judges ended on June 27, 1984, when the transition period expired, and that Congress, in the 1984 Act, created new bankruptcy judgeships and “appointed” interim judges to fill those positions, in violation of the appointments clause. On this issue the parties have primarily relied on the extensive briefs filed in In re Benny, 44 B.R. 581 (N.D.Cal.1984). This court agrees with Judge Schnacke’s conclusion in that case that there was no “gap” between June 27, 1984, and July 10, 1984, during which the bankruptcy courts ceased to exist. The hold-over provisions of the 1978 Act, sections 404(b) and (d) (as amended), authorized the bankruptcy judges to continue in office until June 27, 1984, or until their successors were appointed or took office. Because no bankruptcy judges were appointed or took office between June 27 and July 10, 1984, the bankruptcy judges serving on June 27, 1984, continued in office at least until July 10, 1984. Thus, the 1984 Act is not constitutionally infirm. It did not “appoint” interim bankruptcy judges, in violation of the appointments clause, because there were no vacant offices to appoint them to. Neither was it an impermissible retroactive extension of the bankruptcy judges’ offices, since their offices had not expired at the time the act was passed. Even if this court were persuaded that there was a gap between the expiration of the transition period and the effective date of the 1984 Act, it would reaffirm its judgment in In re Wasatch Factoring, Inc., Misc. No. B-0015W (D. Utah Nov. 26, 1984), upholding the constitutionality of" }, { "docid": "1155769", "title": "", "text": "1978 Act, there is a holdover provision, which provides that bankruptcy judges shall continue in office until a successor is appointed. The Court’s judgment, therefore, is that there was no break in the continuity of service of the bankruptcy judges and that all bankruptcy judges continued in office under the applicable holdover provisions of the 1978 Act or the Bankruptcy Act of 1898 until July 10, 1984, when the 1984 Act went into effect. At that point the terms of the bankruptcy judges were extended by Section 106(a) of the 1984 Act, which provides: Notwithstanding section 152 of title 28, United States Code, as added by this Act, the term of office of a bankruptcy judge who is serving on the date of enactment of this Act is extended to and expires four years after the date such bankruptcy judge was last appointed to such office or on October 1, 1986, whichever is later. Pub.L. No. 93-353, § 106(a), 98 Stat. 333, 342. Bethlehem and the Justice Department, however, assert that because there were no bankruptcy courts after June 27, 1984, there could be no bankruptcy judges, regardless of any holdover provisions; thus, the judges lost their positions when they lost their courts. When the 1984 Act was enacted, they contend, the Appointments Clause was violated inasmuch as Congress in effect “reappointed” all the judges who had left office after June 27, 1984. This Court is in agreement with the opinion of Judge Mihm in In re Moens, No. 84-4109, slip op. at 5-8 (C.D.Ill. Feb. 21, 1985), that there was never a break in the continuity of the bankruptcy court. Section 404(a) of the 1978 Act provides as follows: The courts of bankruptcy, as defined under section 1(10) of the Bankruptcy Act, created under section 2a of the Bankruptcy Act, and existing on September 30, 1979, shall continue through March 31, 1984, to be the courts of bankruptcy for the purposes of this Act and the amendments made by this Act. Each of the courts of bankruptcy so continued shall constitute a separate department of the district court that" }, { "docid": "3844690", "title": "", "text": "the existing bankruptcy courts were to continue in operation. The term of office of each bankruptcy judge was extended to March 31, 1984, or “when his successor takes office.” 1978 Act, tit. 4, § 404(b), 92 Stat. at 2683. For bankruptcy judges appointed during this transition period, such as the Honorable John H. Allen, who heard this case, the applicable hold-over provision was section 34(a) of the old Bankruptcy Act (codified at former 11 U.S.C. § 62(a)). Id. § 404(d), 92 Stat. at 2684. Section 34(a) provided: “Upon the expiration of his term, a referee in bankruptcy [i.e., a bankruptcy judge] shall continue to perform the duties of his office until his successor is appointed and qualifies.... ” The expiration date of the transition period was eventually extended to June 27, 1984. See Pub.L. No. 98-249, 98 Stat. 116 (1984); Pub.L. No. 98-271, 98 Stat. 163 (1984); Pub.L. No. 98-299, 98 Stat. 214 (1984); Pub.L. No. 98-325, 98 Stat. 268 (1984). Some two weeks after this expiration date, on July 10, 1984, the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (“the 1984 Act”) was signed into law. Section 121(e) of that act retroactively extended the term of all bankruptcy judges serving on June 27,1984, to July 10,1984, the date the new act became law. Section 106(a) of the 1984 Act extended the terms of bankruptcy judges serving on July 10,1984, to the later of October 1, 1986, or four years from the date of their last appointment. The defendants claim that the terms of office of all bankruptcy judges ended on June 27, 1984, when the transition period expired, and that Congress, in the 1984 Act, created new bankruptcy judgeships and “appointed” interim judges to fill those positions, in violation of the appointments clause. On this issue the parties have primarily relied on the extensive briefs filed in In re Benny, 44 B.R. 581 (N.D.Cal.1984). This court agrees with Judge Schnacke’s conclusion in that case that there was no “gap” between June 27, 1984, and July 10, 1984, during which the bankruptcy courts" }, { "docid": "18758736", "title": "", "text": "judges were still lawful office holders at the time BAFJA was adopted, notwithstanding the expiration of the transition period on June 27, 1984. Thus, rather than constituting an unlawful appointment of these judges, § 106(a) merely served to extend the terms of the existing bankruptcy judges, similar to § 404(b) of the 1978 Act. See id. at 586-88. Alternatively, the court in Benny held that § 106(a) of BAFJA did not result in an unconstitutional appointment of judges in light of § 121(e) of the same act. The court concluded that § 121(e) constituted a holdover provision which extended the terms of the bankruptcy judges until the adoption of BAFJA. See 44 B.R. at 588-92. The court dismissed the contention that § 121(e) was invalid because it was adopted after the transition period had expired. Retroactive legislation in and of itself, the court argued, was not antithetical to the strictures of the appointments clause. Rather, the critical inquiry was whether the legislation impermissibly intruded on the inherent authority of the executive branch. The court concluded that § 121(e) did not impermissibly intrude on the president’s appointment power and therefore affected a valid retroactive extension of the bankruptcy judge’s terms of office. Id. at 592-98; see also In re Torn Carter, 44 B.R. at 608 (“[Section 121(e)’s] retroactive extension of office of bankruptcy judge can in no principled way be said to encroach upon the separation of powers principles embodied in said Appointments Clause”). Although plausible arguments can be raised in response to the reasoning adopted by the Benny court, we are ultimately persuaded that this reasoning is correct. Accordingly, for substantially the same reasons advanced in Benny, we reject the appellants’ claim in the instant case that the bankruptcy judge was without authority to hear the trustee’s suit because he was appointed in violation of Article II. III. The Jurisdiction of the Bankruptcy Court Under the SIPA The appellants’ final jurisdictional claim is that the bankruptcy court lacked statutory jurisdiction to try cases brought under the SIPA The bankruptcy court agreed that it lacked jurisdiction but the district court reversed" }, { "docid": "18758734", "title": "", "text": "date of enactment of this Act is extended to and expires four years after the date such bankruptcy judge was last appointed to such office or on October 1, 1986, whichever is later.” P.L. No. 98-353, 98 Stat. 342 (1984). The appellant argues that § 106(a) constituted an appointment of bankruptcy judges in violation of Article II. According to the appellant, the terms of the bankruptcy judges serving during the transition period elapsed on June 27, 1984. Thus, when BAF-JA was adopted on July 10, 1984, these positions were all vacant. By continuing the judges in office under the authority of § 106(a), appellant argues, BAFJA in essence resulted in a unilateral congressional appointment of these judges that bypassed Article II’s requirement of presidential nomination. The appellants’ argument has been rejected by every court that has considered it. See e.g., In re Lombard-Wall Inc., 48 B.R. 986, 993 (S.D.N.Y.1985); In re Moody, 46 B.R. 231, 233 (M.D.N.C.1985); In re Tom Carter Enters., Inc., 44 B.R. 605, 606-07 (C.D.Cal.1984); In re Benny, 44 B.R. 581 (N.D.Cal.1984), dismissed in part on other grounds, 791 F.2d 712 (9th Cir.1986); In re Sweetwater, 55 B.R. 724, 726-28 (D.Utah 1985) aff'd on other grounds and rev’d on other grounds, 884 F.2d 1323 (10th Cir.1989); In re Southern Indus., 66 B.R. 349, 357-59 (Bankr.E.D.Tenn.); In the Matter of Baldwin-United Corp., 48 B.R. 49, 53 (Bankr.S.D.Ohio, 1985). The seminal case in this regard is In re Benny. In that case, the court based its conclusion that § 106(a) of BAFJA did not result in an unconstitutional appointment of bankruptcy judges on both § 404(b) of the 1978 Act and § 121(e) of BAFJA. Section 404(b) of the 1978 Act, the Benny court argued, contained a holdover provision which expressly authorized the bankruptcy judges to serve beyond the expiration of the transition period. This holdover provision, according to the court, consisted of the second part of the disjunctive contained in § 404(b) that provided that the bankruptcy judges were to serve until their successors were appointed. In light of this holdover provision, the Benny court concluded, the bankruptcy" }, { "docid": "18758733", "title": "", "text": "bankruptcy judges serving prior to the Act until the end of the transition period or when their “successors take office.” Pub.L. No. 95-598, 92 Stat. 2683-84 (1978). As noted previously, the Supreme Court in Northern Pipeline struck down the jurisdictional grant of authority provided to the bankruptcy courts by the 1978 Bankruptcy Reform Act. In response, Congress adopted the Bankruptcy Amendments and Federal Judgeship Act (“BAFJA”) on July 10, 1984. Prior to the adoption of BAFJA, Congress extended the transition period established by the 1978 Act until June 27, 1984. BAFJA granted the bankruptcy courts jurisdiction over all core bankruptcy matters and established the courts as adjuncts to the district court for all non-core bankruptcy matters. Section 121(e) provided that “[t]he term of office of any bankruptcy judge who was serving on June 27,1984, is extended to and shall expire at the end of the day of enactment of this Act.” P.L. No. 98-353, 98 Stat. 346 (1984). Section 106(a) provided that “the term of office of a bankruptcy judge who is serving on the date of enactment of this Act is extended to and expires four years after the date such bankruptcy judge was last appointed to such office or on October 1, 1986, whichever is later.” P.L. No. 98-353, 98 Stat. 342 (1984). The appellant argues that § 106(a) constituted an appointment of bankruptcy judges in violation of Article II. According to the appellant, the terms of the bankruptcy judges serving during the transition period elapsed on June 27, 1984. Thus, when BAF-JA was adopted on July 10, 1984, these positions were all vacant. By continuing the judges in office under the authority of § 106(a), appellant argues, BAFJA in essence resulted in a unilateral congressional appointment of these judges that bypassed Article II’s requirement of presidential nomination. The appellants’ argument has been rejected by every court that has considered it. See e.g., In re Lombard-Wall Inc., 48 B.R. 986, 993 (S.D.N.Y.1985); In re Moody, 46 B.R. 231, 233 (M.D.N.C.1985); In re Tom Carter Enters., Inc., 44 B.R. 605, 606-07 (C.D.Cal.1984); In re Benny, 44 B.R. 581 (N.D.Cal.1984)," }, { "docid": "3844689", "title": "", "text": "title 11, within the meaning of 28 U.S.C.A. § 1334(b). The bankruptcy court did not reach the constitutional issue because of an unpublished ruling by Judge David K. Winder of this court that the 1984 Act was constitutional. In re Wasatch Factoring, Inc., Misc. No. B-0015W (D.Utah Nov. 26, 1984). II. Issues on Appeal A. Constitutionality of the 1984 Act The defendants’ first contention on appeal is that the 1984 Act violates the appointments clause, U.S. Const, art. II, § 2, cl. 2, which vests in the President the power to appoint officers of the United States whose appointments are not otherwise provided for. To understand the defendants’ argument, one must first understand the history of the bankruptcy courts, especially since the enactment of the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (the “1978 Act”). That history is set out in detail in In re Benny, 44 B.R. 581, 584-86 (N.D.Cal.1984). Suffice it to say that the 1978 Act restructured the bankruptcy court system and established a transition period during which the existing bankruptcy courts were to continue in operation. The term of office of each bankruptcy judge was extended to March 31, 1984, or “when his successor takes office.” 1978 Act, tit. 4, § 404(b), 92 Stat. at 2683. For bankruptcy judges appointed during this transition period, such as the Honorable John H. Allen, who heard this case, the applicable hold-over provision was section 34(a) of the old Bankruptcy Act (codified at former 11 U.S.C. § 62(a)). Id. § 404(d), 92 Stat. at 2684. Section 34(a) provided: “Upon the expiration of his term, a referee in bankruptcy [i.e., a bankruptcy judge] shall continue to perform the duties of his office until his successor is appointed and qualifies.... ” The expiration date of the transition period was eventually extended to June 27, 1984. See Pub.L. No. 98-249, 98 Stat. 116 (1984); Pub.L. No. 98-271, 98 Stat. 163 (1984); Pub.L. No. 98-299, 98 Stat. 214 (1984); Pub.L. No. 98-325, 98 Stat. 268 (1984). Some two weeks after this expiration date, on July 10, 1984, the Bankruptcy Amendments" }, { "docid": "1155771", "title": "", "text": "is such court of bankruptcy under the Bankruptcy Act. The extension acts discussed above also extended the expiration dates for Section 404(a) so that the bankruptcy courts provided for in the Bankruptcy Act of 1898 remained in effect until June 27, 1984. See Pub.L. No. 98-249 § 1(b), 98 Stat. 116 (1984); Pub.L. No. 98-271 § 1(b), 98 Stat. 163 (1984); Pub.L. No. 98-299 § 1(b), 98 Stat. 214 (1984); Pub.L. No. 98-325 § 1(b), 98 Stat. 268 (1984). The 1978 Act, as amended by Section 1(a) of the above cited extension acts, provided in Section 402(b) that Title II of the 1978 Act would take effect on June 28, 1984. Thus, on June 28, 1984, when the last extension act expired, Title II went into effect. Title II contained. Section 201(a) of the 1978 Act, which provides: “There shall be in each judicial district, as an adjunct to the district court for such district, a bankruptcy court which shall be a court of record known as the United States Bankruptcy Court for the district.” 28 U.S.C. § 151(a). Thus, there was no gap in the continuity of the incumbency of the bankruptcy court. When the extension expired on June 27, 1984, the bankruptcy system of the 1978 Act was activated. It is the conclusion of the Court that there was no gap in the incumbency of the bankruptcy judges or of the bankruptcy courts; therefore, the Appointments Clause of Article II has not been triggered because no vacancy occurred. It is the judgment of the Court that Sections 104(a), 106(a), and 121(e) of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 are constitutional; therefore defendant’s motion to dismiss is DENIED. . The issues raised before this Court have been addressed in other courts, and all but one have upheld the constitutionality of the provisions in dispute. See In re Moody, 46 B.R. 231 (M.D.N.C.1985) (upholding the constitutionality of Sections 106(a) and 121(e)); In re Tom Carter Enterprises, Inc., 44 B.R. 605 (C.D.Calif.1984) (upholding the constitutionality of Sections 104(a), 106(a), and 121(e)); In" }, { "docid": "1155753", "title": "", "text": "MEMORANDUM JOHN T. NIXON, District Judge. Production Steel, Inc,, as debtor-in-possession, has brought a preference action in bankruptcy court against Bethlehem Steel Corporation (“Bethlehem”) seeking to recover $620,056.79 allegedly paid to Bethlehem during the ninety days prior to the filing of the Chapter 11 petition by Production Steel. On October 5, 1984, this Court granted the motion of Production Steel and Bethlehem for a partial withdrawal of reference of this action in order to rule on the constitutionality of Sections 104(a), 106(a), and 121(e) of the Bankruptcy Amendments and Federal Judgeship Act of 1984 (“1984 Act”). Bethlehem challenges the constitutionality of all three sections. The United States (hereinafter referred to as “Justice Department”) has intervened to support the constitutionality of Section 104(a) and to challenge the constitutionality of Sections 106(a) and 121(e). The United States Senate and the Speaker and Bipartisan Leadership Group of the United States House of Representatives have intervened in support of the constitutionality of Sections 106(a) and 121(e). Bankruptcy Judges Lundin, McFeeley, Norton, Paine, Robinson, and Votolato have intervened in support of the constitutionality of Sections 106(a) and 121(e). This cause came on for hearing on January 24, 1985. For the reasons discussed below, it is the judgment of the Court that Sections 104(a), 106(a), and 121(e) are constitutional. The part of Section 104(a) that is in dispute will be codified as 11 U.S.C. §§ 157, 158. The relevant portions of those sections permit the district court to refer any or all cases arising under Title 11 to the district’s bankruptcy judges. 28 U.S.C. § 157(a). Section 157 authorizes the bankruptcy judges in “core” bankruptcy cases to enter orders and judgments subject to the review of the district courts. 28 U.S.C. §§ 157(b)(1), 158. The basis of one of the two constitutional challenges in this action is the standard of review that is applicable in core cases that have been appealed to district court. For the purposes of judicial review, Section 157 divides cases heard by bankruptcy judges into core and noncore cases. A nonexhaustive list of core proceedings is listed in Section 157(b)(2). The bankruptcy" }, { "docid": "1674399", "title": "", "text": "considered and rejected in In re Benny, 44 B.R. 581 (N.D.Ca. 1984), appeal dismissed, 14 Bankr.Ct.Dec. (CRR) 901, 791 F.2d 712 (9th Cir.1986). This court concurs in the Benny court’s conclusion that the term of office of bankruptcy judges continued until enactment of the 1984 bankruptcy amendments on July 10, 1984, by virtue of the holdover provision of section 404(b) of the 1978 Bankruptcy Reform Act. As officeholders on July 10, 1984, pursuant to the holdover provisions of prior law, the bankruptcy judges were properly continued in office, by Section 106(a), without reliance on any retroactive application of Section 121(e) of the 1984 Act. In re Benny, 44 B.R. at 586. Accord Robison v. First Fin. Capital Management Corp. (In re Sweetwater), 55 B.R. 724 (D. Utah 1985); Production Steel, Inc. v. Bethlehem Steel Corp., 48 B.R. 841 (M.D.Tenn.1985). Assuming there was a hiatus, this court further agrees with the Benny court’s determination that sections 106(a) and 121(e) permissibly extend the bankruptcy judges’ terms retroactively and do not effect invalid legislative appointments. Congress did not select, and therefore did not “appoint”, any one or all of the bankruptcy judges now in office. Rather, Congress modified the terms of office and nature of office of all bankruptcy judges previously appointed by the district courts who were in office as of June 27, 1984. By selecting no one to be added to, or subtracting from, the bankruptcy judges in office on June 27, Congress filled no vacancy — and created no vacancy — in the office of bankruptcy judge. In re Benny, 44 B.R. at 589 (footnote omitted). Extension of the term of service of the bankruptcy judges pursuant to the Bankruptcy Amendments and Federal Judgeship Act of 1984 does not violate the Appointments Clause. IV Lack of Notice of Bankruptcy Proceedings Defendants contend the trustee should be estopped and the complaints dismissed because they did not have notice and an opportunity to participate in the proceedings resulting in confirmation of the SIBC plan of reorganization. Plaintiff responds this fact does not bar the preference actions. Defendants assert they were identified as" }, { "docid": "1155770", "title": "", "text": "bankruptcy courts after June 27, 1984, there could be no bankruptcy judges, regardless of any holdover provisions; thus, the judges lost their positions when they lost their courts. When the 1984 Act was enacted, they contend, the Appointments Clause was violated inasmuch as Congress in effect “reappointed” all the judges who had left office after June 27, 1984. This Court is in agreement with the opinion of Judge Mihm in In re Moens, No. 84-4109, slip op. at 5-8 (C.D.Ill. Feb. 21, 1985), that there was never a break in the continuity of the bankruptcy court. Section 404(a) of the 1978 Act provides as follows: The courts of bankruptcy, as defined under section 1(10) of the Bankruptcy Act, created under section 2a of the Bankruptcy Act, and existing on September 30, 1979, shall continue through March 31, 1984, to be the courts of bankruptcy for the purposes of this Act and the amendments made by this Act. Each of the courts of bankruptcy so continued shall constitute a separate department of the district court that is such court of bankruptcy under the Bankruptcy Act. The extension acts discussed above also extended the expiration dates for Section 404(a) so that the bankruptcy courts provided for in the Bankruptcy Act of 1898 remained in effect until June 27, 1984. See Pub.L. No. 98-249 § 1(b), 98 Stat. 116 (1984); Pub.L. No. 98-271 § 1(b), 98 Stat. 163 (1984); Pub.L. No. 98-299 § 1(b), 98 Stat. 214 (1984); Pub.L. No. 98-325 § 1(b), 98 Stat. 268 (1984). The 1978 Act, as amended by Section 1(a) of the above cited extension acts, provided in Section 402(b) that Title II of the 1978 Act would take effect on June 28, 1984. Thus, on June 28, 1984, when the last extension act expired, Title II went into effect. Title II contained. Section 201(a) of the 1978 Act, which provides: “There shall be in each judicial district, as an adjunct to the district court for such district, a bankruptcy court which shall be a court of record known as the United States Bankruptcy Court for the district.”" }, { "docid": "18582050", "title": "", "text": "ORDER W. HOMER DRAKE, Bankruptcy Judge. On November 20, 1984, Stacey W. Cotton, as Trustee in Bankruptcy for All American of Ashburn, Inc. (“Trustee”), commenced the above-referenced adversary proceeding to collect accounts receivable. The complaint seeks recovery of pre-petition receivables in the amount of $33,885.62 plus interest from September 17, 1983, and post-petition receivables in the amount of $347.98 plus interest from October 5, 1983. This case is presently before the Court on the motions of the defendant, C.W. Shirah, Jr. (“Shirah”), requesting that the Court abstain from exercising jurisdiction over the adversary proceeding or, alternatively, that the Court transfer the adversary proceeding to the United States Bankruptcy Court for the Southern District of Georgia. ABSTENTION Jurisdiction over the adversary proceeding is vested in this Court pursuant to 28 U.S.C. §§ 1334(b), 151, 157(a); Standing Order of the United States District Court for the Northern District of Georgia dated July 12, 1984. See In re Butcher, 46 B.R. 109, 111 (Bankr.N.D.Ga.1985). The constitu tionality of this jurisdictional scheme, as implemented by the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (July 10, 1984), has been upheld by all courts to consider the issue. In re Tom Carter Enterprises, 12 BCD 536, 538, 44 B.R. 605 (C.D.Cal.1984) (constitutionality of order of reference with respect to core proceedings upheld); In re WWG Industries, Inc., 12 BCD 752, 753, 44 B.R. 287 (N.D.Ga.1984) (constitutionality of order of reference with respect to noncore proceedings upheld); In re DeLorean Motor Co. (Allard v. Benjamin, et al.), 49 B.R. 900 (Bankr.E.D. Mich., 1985). See also In re Lorren, 12 BCD 549, 550, 45 B.R. 584 (Bankr.N.D.Ala.1984); In re Lion Capital Group, 12 BCD 840, 845, 46 B.R. 850 (Bankr.S.D.N.Y.1985). Nevertheless, Shirah argues that the Court should abstain from exercising jurisdiction over the adversary proceeding pursuant to 28 U.S.C. § 1334(c)(1). Discretionary abstention is authorized by 28 U.S.C. § 1334(c)(1), which states as follows: Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law," }, { "docid": "1674398", "title": "", "text": "Section 121(b) of the Act provides for the amendment of section 404(b) of the 1978 Bankruptcy Reform Act to strike “June 27, 1984” each place it appears and to substitute therefor “the day before the date of enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984.” Section 121(e) recites: “The term of office of any bankruptcy judge who was serving on June 27, 1984, is extended to and shall expire at the end of the day of enactment of this Act.” Notwithstanding section 152 of title 28, United States Code, as added by this Act, the term of office of a bankruptcy judge who is serving on the date of enactment of this Act is extended to and expires four years after the date such bankruptcy judge was last appointed to such office or on October 1, 1986, whichever is later. Defendants contend the term of office of the bankruptcy judges expired on June 27, 1984, and that Congress has appointed bankruptcy judges in violation of the Appointments Clause. These contentions were thoroughly considered and rejected in In re Benny, 44 B.R. 581 (N.D.Ca. 1984), appeal dismissed, 14 Bankr.Ct.Dec. (CRR) 901, 791 F.2d 712 (9th Cir.1986). This court concurs in the Benny court’s conclusion that the term of office of bankruptcy judges continued until enactment of the 1984 bankruptcy amendments on July 10, 1984, by virtue of the holdover provision of section 404(b) of the 1978 Bankruptcy Reform Act. As officeholders on July 10, 1984, pursuant to the holdover provisions of prior law, the bankruptcy judges were properly continued in office, by Section 106(a), without reliance on any retroactive application of Section 121(e) of the 1984 Act. In re Benny, 44 B.R. at 586. Accord Robison v. First Fin. Capital Management Corp. (In re Sweetwater), 55 B.R. 724 (D. Utah 1985); Production Steel, Inc. v. Bethlehem Steel Corp., 48 B.R. 841 (M.D.Tenn.1985). Assuming there was a hiatus, this court further agrees with the Benny court’s determination that sections 106(a) and 121(e) permissibly extend the bankruptcy judges’ terms retroactively and do not effect invalid legislative appointments. Congress did not" }, { "docid": "18582051", "title": "", "text": "Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (July 10, 1984), has been upheld by all courts to consider the issue. In re Tom Carter Enterprises, 12 BCD 536, 538, 44 B.R. 605 (C.D.Cal.1984) (constitutionality of order of reference with respect to core proceedings upheld); In re WWG Industries, Inc., 12 BCD 752, 753, 44 B.R. 287 (N.D.Ga.1984) (constitutionality of order of reference with respect to noncore proceedings upheld); In re DeLorean Motor Co. (Allard v. Benjamin, et al.), 49 B.R. 900 (Bankr.E.D. Mich., 1985). See also In re Lorren, 12 BCD 549, 550, 45 B.R. 584 (Bankr.N.D.Ala.1984); In re Lion Capital Group, 12 BCD 840, 845, 46 B.R. 850 (Bankr.S.D.N.Y.1985). Nevertheless, Shirah argues that the Court should abstain from exercising jurisdiction over the adversary proceeding pursuant to 28 U.S.C. § 1334(c)(1). Discretionary abstention is authorized by 28 U.S.C. § 1334(c)(1), which states as follows: Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising or related to a case under title 11. 28 U.S.C. § 1334(c)(1). Although the issues raised by the complaint are governed by state law, that fact is not determinative that abstention is appropriate. In re Tom Carter Enterprises, 12 BCD at 539, 44 B.R. 605; In re DeLorean Motor Co., at 906-907; In re Butcher, 46 B.R. at 114. See also 28 U.S.C. § 157(b)(3) (“... A determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by State law”). The decision by Bankruptcy Judge Graves in In re DeLorean Motor Co., at 909-910, outlines the traditional rationales for federal abstention, none of which are applicable to the case sub judice. Judge Graves notes further that the abstention doctrine “has been viewed as ‘an extraordinary and narrow exception to the duty of the federal courts to adjudicate controversies which are properly before it.’ ” Id., at 910 (citing Colorado" }, { "docid": "13941037", "title": "", "text": "WIGGINS, Circuit Judge: These cases involve appeals from a district court’s order, 44 BR 581, upholding the constitutionality of sections 106 and 121 of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (the 1984 Act), and from an order denying intervention to a group of bankruptcy judges. We dismiss appeals Nos. 84-2805 and 85-1517, challenging the constitutionality of the 1984 Act, for lack of jurisdiction. We also dismiss for lack of jurisdiction appeal No. 84-1765, raising the same issue, in which permission to appeal pursuant to 28 U.S.C. § 1292(b) (1982) had previously been granted. Finally, in appeal No. 85-1530, we affirm the district court’s decision denying the bankruptcy judge’s motion to intervene as of right, and we conclude that the district court did not abuse its discretion in denying their motion for permissive intervention. FACTS AND PROCEDURAL HISTORY The involuntary bankruptcy proceeding that gives rise to these appeals was filed against the Bennys in 1982. After the bankruptcy court entered an order for relief of creditors, the Bennys moved the bankruptcy court for reconsideration. Alexandra Benny (Benny) also moved to dismiss the proceeding on the basis of the bankruptcy court’s lack of jurisdiction. She contended that the bankruptcy judge was improperly exercising jurisdiction over the bankruptcy proceedings because he had been unconstitutionally reinstated to office. The district court granted Benny’s motion for partial withdrawal of the reference to bankruptcy court with respect to the constitutionality issue. Benny subsequently filed a motion in district court seeking: (1) a declaration that Congress violated the Constitution in passing sections 106 and 121 of the 1984 Act, which extended bankruptcy judges’ terms retroactively to June 28, 1984, and prospectively for two to four years; and (2) rescission of the Northern District of California’s July 20,1984, general reference order referring all bankruptcy matters to bankruptcy judges. The crux of her argument was that either the bankruptcy judgeships or the bankruptcy judges’ terms of office had terminated on June 28, 1984, on the expiration of the Bankruptcy Reform Act of 1978, Pub.L. 95-598, 92 Stat. 2549 (the 1978" }, { "docid": "1155772", "title": "", "text": "28 U.S.C. § 151(a). Thus, there was no gap in the continuity of the incumbency of the bankruptcy court. When the extension expired on June 27, 1984, the bankruptcy system of the 1978 Act was activated. It is the conclusion of the Court that there was no gap in the incumbency of the bankruptcy judges or of the bankruptcy courts; therefore, the Appointments Clause of Article II has not been triggered because no vacancy occurred. It is the judgment of the Court that Sections 104(a), 106(a), and 121(e) of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 are constitutional; therefore defendant’s motion to dismiss is DENIED. . The issues raised before this Court have been addressed in other courts, and all but one have upheld the constitutionality of the provisions in dispute. See In re Moody, 46 B.R. 231 (M.D.N.C.1985) (upholding the constitutionality of Sections 106(a) and 121(e)); In re Tom Carter Enterprises, Inc., 44 B.R. 605 (C.D.Calif.1984) (upholding the constitutionality of Sections 104(a), 106(a), and 121(e)); In re Benny, 44 B.R. 581 (N.D.Calif.1984) (upholding the constitutionality of Sections 106(a) and 121(e)); In re Moens, No. 84-4109, slip op. (C.D.Ill. Feb. 21, 1985) (upholding the constitutionality of Sections 104(a), 106(a), and 121(e)); In re Whet, Inc., No. CA 84-2985-T, slip op. (D.Mass. Jan. 18, 1985) (upholding the constitutionality of the entire 1984 Act generally)); In re Bricker Systems, Inc., 44 B.R. 952 (Bankr.E.D.Wis.1984) (upholding the constitutionality of Section 106(a)); In re Wasatch Factoring, Inc., No. 84 PA-1013, slip op. (C.D.Utah Dec. 3, 1984 (upholding the constitutionality of Section 121(e)). Bankruptcy Judge David L. Crawford found Section 104(a) to be unconstitutional. See Associated Groceries of Nebraska Co-op, Inc. v. Nabisco, 46 B.R. 173 (Bankr.D.Neb.), Transcript of Proceedings, Jan. 21, 1985, at 16-21. . Relevant parts of Section 157 provide as follows: (a) Each district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the" }, { "docid": "3844688", "title": "", "text": "Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (codified in scattered sections of 11 U.S.C. and 28 U.S.C.), which purports to extend the terms of bankrutpey judges beyond June 28, 1984, violated the appointments clause of the United States Constitution, article II, section 2, clause 2. Second, the defendants claimed that the bankruptcy court lacked jurisdiction because the suits do not arise under title 11, nor do they arise in or relate to a case under title 11, as required by 28 U.S.C.A. § 1334(b). Third, the defendants claimed that the plaintiff could not maintain these actions because the avoiding powers of a trustee or debtor in possession under the Code are not assignable. The plaintiff disputed each of the defendants’ arguments and claimed that the defendants were precluded from challenging the validity of the assignment because they had failed to object to the reorganization plan when it was before the bankruptcy court. The bankruptcy court denied the defendants’ motions to dismiss, holding that the claims were properly assigned and that they arose under title 11, within the meaning of 28 U.S.C.A. § 1334(b). The bankruptcy court did not reach the constitutional issue because of an unpublished ruling by Judge David K. Winder of this court that the 1984 Act was constitutional. In re Wasatch Factoring, Inc., Misc. No. B-0015W (D.Utah Nov. 26, 1984). II. Issues on Appeal A. Constitutionality of the 1984 Act The defendants’ first contention on appeal is that the 1984 Act violates the appointments clause, U.S. Const, art. II, § 2, cl. 2, which vests in the President the power to appoint officers of the United States whose appointments are not otherwise provided for. To understand the defendants’ argument, one must first understand the history of the bankruptcy courts, especially since the enactment of the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (the “1978 Act”). That history is set out in detail in In re Benny, 44 B.R. 581, 584-86 (N.D.Cal.1984). Suffice it to say that the 1978 Act restructured the bankruptcy court system and established a transition period during which" } ]

[ { "docid": "3023654", "title": "", "text": "aptly stated his conclusions as follows: “ * * * The conclusion had been reached that nothing in the correspondence reasonably tends to show an intention to waive any part of the plain-tilt's rights under the contract, except the right to immediate payment on the expiration of the thirty days after the machines were received. An intention to show consideration for the interests of the purchaser and an intention to delay peremptory demand for payment is shown; but everything said and done by the plaintiff, as shown by the correspondence, is consistent with an intention to strictly reserve all other rights of the plaintiff. Mere indulgence as to the time of payment, because of the purchaser’s dissatisfaction about the working of the machines, is all that he believed can be reasonably derived from the correspondence.” The rule is thus stated in 27 R. C. L., § 6, p. 909: “To make out a case of waiver of legal right, there must be a clear unequivocal and decisive act of the party showing such a purpose, or acts amounting to an estoppel on his part. A waiver to be operative must be supported by a valuable consideration, or the act relied on as a waiver must bei such as to estop a party from insisting, upon performance of the contract.” See, also, Ford Motor Co. v. Switzer, 1401 Va. 383, 125 S. E. 209; Atlantic Coast Line R. R. v. Bryan, 109 Va. 523, 65 S. E; 30; Richmond Trust Co. v. Christian, 150 Va. 244, 142 S. E. 528. Notwithstanding the retention of the title to the machines by the seller, it had the right to sue for the purchase price. The retention of title was simply additional security, and the right to sue for the purchase price is in no way affected by retention of the title. Under this contract, the seller could exercise either remedy at its election, that is, reclaim the property or sue for purchase price. 24 R. C. L., p. 489; Morgan-Gardner Electric Co. v. Beelick Knob Coal Co., 91 W. Va. 347, 112 S." } ]

[ { "docid": "15113430", "title": "", "text": "claim that the insurer waived its right to cancel these rein-statements for fraud or was guilty of laches because it waited for thirty days after discovery of the fraud before notifying the insured of its intention to rescind the rein-statements. We think that the company acted with reasonable promptness in giving notice of rescission. There is no evidence in the record which would justify a finding that the insured suffered any prejudice by reason of the thirty days’ delay. At the time of reinstatement, Joseph Rosenthal was in the last stages of syphilis, and it is apparent that he could not honestly have procured life insurance from any source. In State ex rel. Metropolitan Life Insurance Co. v. Shain, supra, 334 Mo. 385, 66 S.W.2d 871, 874, the Supreme Court of Missouri, in speaking of the general principles of the law of waiver, quoted the following language: “ ‘A waiver is an intentional relinquishment of a known right. To make out a case of implied waiver of a legal right, there must be a clear, unequivocal. and decisive act of the party showing such purpose, or acts amounting to an estoppel on his part. [Authorities cited.] It has been said that thé law of waiver is a “technical doctrine introduced and applied by courts for the purpose of defeating forfeitures.” It has also been said that in insurance cases the courts are inclined to grasp any circumstances which indicate an election to waive a forfeiture, although insufficient to create a technical estoppel. But even in insurance cases the intention to waive must plainly appear, or else the acts or conduct relied upon as constituting waiver must involve some element of estoppel. Parsons, Rich & Co. v. Lane, 97 Minn. 98, 106 N.W. 485, 4 L.R.A.,N.S., 231, 7 Ann. Cas. 1144.’ ” With respect to laches that court has said in Hagan v. Lantry, 338 Mo. 161, 174, 89 S.W.2d 522, 529: “A statute of limitations is not here involved, and mere delay on the part of a plaintiff in asserting an equitable claim does not alone or necessarily constitute laches." }, { "docid": "6579628", "title": "", "text": "contract and is now estopped from denying the validity of the succession agreements as valid contractual assignments. The principles of waiver and estoppel support the notion that one party to a contract may not lull the other into a false assurance that strict compliance with a contractual duty will not be required and then sue for noncompliance. Saverslak v. Davis-Cleaver Produce Co., 606 F.2d 208, 213 (7th Cir.1979) cert. denied 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 762 (1980). In a contractual setting, waiver occurs when an obligor manifests an intent not to require an obligee to strictly comply with a contractual duty. American Dairy Queen v. Brown-Port Co., 621 F.2d 255, 255-257 & n. 1 (7th Cir.1980). See also Geldermann, Inc., v. Fenimore, 663 F.Supp. 590, 592 (N.D.Ill.1987). The applicability of waiver depends on the intent of the non-breaching party. If he has intentionally relinquished a known right, either expressly or by conduct inconsistent with an intent to enforce that right, he has waived it and may not thereafter seek judicial enforcement. Saverslak, 606 F.2d at 213. See also Morgan v. Quailbrook Condominium Co., 704 P.2d 573, 578 (Utah 1985); Hunter v. Hunter, 669 P.2d 430, 432 (Utah 1983); Chicago College of Osteo v. George A. Fuller Co., 776 F.2d 198, 202 (7th Cir.1985). Waiver can be express or implied; it is shown by the party’s words or deeds inconsistent with an intent to insist on his contractual rights. Id.; T.G.I. East Coast Const. v. Fireman’s Fund Ins. Co., 600 F.Supp. 178, 181 (S.D.N.Y.1985). To constitute waiver, the party’s actions or conduct must be distinctly made, must evince in some unequivocal manner an intent to waive, and must be inconsistent with any other intent. Hunter, 669 P.2d at 432. Of course, the fact that a party has not enforced a provision in another contract on a previous occasion does not grant the other party a license to ignore that provision in subsequent contracts. W.P. Harlin Construction Co. v. Utah State Road Com’n, 19 Utah 2d 364, 431 P.2d 792, 794 (1967). However, waiver applies when a party to" }, { "docid": "18750602", "title": "", "text": "317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Viewing the evidence in the light most favorable to the non-moving party, this 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). In the Beardens’ first challenge to the District Court’s decision, they contend that Pizzolato waived any rights he had under the agreement and Patton, as assignee, is bound by this waiver. Because this case is based on diversity jurisdiction, we look to the substantive law of Tennessee where appropriate. Under Tennessee law, “waiver is the voluntary relinquishment of a known right and is established by express declarations or acts manifesting an intent not to claim the right.” Dallas Glass of Hendersonville, Inc. v. Bituminous Fire & Marine Ins. Co., 544 S.W.2d 351, 354 (Tenn.1976); Tennessee Asphalt Co. v. Purcell Enterprises, Inc., 631 S.W.2d 439 (Tenn.Ct.App.1982). Both express and implied waivers must be intentional. Hill v. Goodwin, 722 S.W.2d 668, 671 (Tenn.Ct.App.1986). Additionally, a waiver of a contractual right must be clear and unequivocal. Springfield Tobacco Redryers Corp. v. Springfield, 41 Tenn.App. 254, 293 S.W.2d 189, 198 (1956). Finally, Tennessee law requires either consideration or an element of estoppel for a contractual waiver. Bokor v. Holder, 722 S.W.2d 676, 680 (Tenn.Ct.App.1986). “The party seeking to invoke the equitable estoppel must have acted to his detriment in reliance upon the statements or conduct of the party against whom it is to be enforced.” Id. To support their argument, defendants rely on Pizzolato’s statements and conduct. A. Pizzolato’s Statements Initially, the Beardens argue Pizzola-to expressly waived his contractual rights when Pizzolato told Robert Bearden that he would not charge them royalties. However, Pizzolato’s statements were made prior to the execution of the sub-license agreement. Therefore, the contract controlled the parties’ agreement and the Beardens could not have detrimentally relied on these statements to support their waiver defense. The defendants next argue" }, { "docid": "14465242", "title": "", "text": "also constitutes a waiver of its claims that Amoco has failed to reasonably develop the leased acreage. Under Texas law, it is well established that an assertion of waiver must be supported by proof of an intentional relinquishment of a known right by the person claiming that right or of intentional conduct on the part of that person which is sufficient to warrant an inference of the relinquishment of that right. Wells Fargo Business Credit v. Ben Kozloff, Inc., 695 F.2d 940, 947 (5th Cir.1983); Palmer v. Fuqua, 641 F.2d 1146 (5th Cir.1981); Massachusetts Bonding and Insurance Co. v. Orkin Exterminating Co., 416 S.W.2d 396 (Tex.1967); Texas & P. By. Co. v. Wood, 145 Tex. 534,199 S.W.2d 652 (1947); Cox v. Bancoklahoma Agri-Service Corp., 641 S.W.2d 400 (Tex.Civ.App. — Amarillo 1982, no writ); Landrum v. Devenport, 616 S.W.2d 359 (Tex.Civ.App. — Texarkana 1981, no writ); Texana Oil Co. v. Stephenson, 521 S.W.2d 104 (Tex.Civ.App. — El Paso 1975, no writ); Bluebonnet Oil & Gas Co. v. Panuco Oil Leases, Inc., 323 S.W.2d 334 (Tex.Civ.App. — San Antonio 1959, writ ref’d n.r.e.). As such, waiver implies an election on the part of the person to dispense with something of value or to forego some advantage that might have been demanded or insisted upon. Bluebonnet Oil & Gas Co., supra at 338. See also Ada Oil Co. v. Logan, 447 S.W.2d 205 (Tex.Civ.App. — Houston [14th Dist.] 1969, no writ). The question of whether a waiver has occurred is largely a question of the intent of the party possessing the right and may be express or implied. Wells Fargo Business Credit, supra; Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210 (Tex.Civ.App. — Amarillo 1981, writ ref’d n.r.e.); Cattle Feeders, Inc. v. Jordan, 549 S.W.2d 29 (Tex.Civ.App. — Corpus Christi 1977, no writ); Smith v. Northwest Natl. Bank, 403 S.W.2d 158 (Tex.Civ.App. — Texarkana 1966, writ ref’d n.r.e.). However, waiver by implication is generally applied only to prevent fraud or inequitable consequences and, thus, an implied waiver must be evidenced by clear, unequivocal and decisive acts from which can be inferred the" }, { "docid": "8572192", "title": "", "text": "in pais from which an intention to waive may be inferred, and that such a waiver need not be based on a new consideration, or amount to a technical estoppel.” See, also, Orr v. Mutual Life Ins. Co. (C.C.A. 8) 64 F.(2d) 561. .We quote the following statement from .Vance on Insurance (2d Ed.) page- 451, as to the distinction between waiver and estoppel, with which we are in accord: “The terms ‘waiver’ and ‘estoppel’ as used in insurance law, are frequently-treated as synonymous, and as denoting similar concepts, or, in some instances, complementary concepts. In fact, however, the two concepts are notably distinct, and in the more carefully reasoned judicial decisions, this distinction is clearly recognized. “Waiver is usually defined as the intentional relinquishment of a known right, but it may be more narrowly and accurately defined as the intended giving up of a known privilege or power. It may be express, or implied from circumstances. It always involves consent, express or implied, but does not necessarily rise to the level of contract. “An equitable estoppel in. the broadest sense arises when the insurer or the insured has brought about or allowed such conditions as make it inequitable for him to claim a right to which he would otherwise be entitled. More specifically, if either party to an insurance contract makes, by word or act, a false representation of fact with reference to the contract upon which the other, acting in good faith reasonably relies to his prejudice, he will not be allowed to make any claim under the terms of the contract which is inconsistent with such representation. “Waiver is thus seen to be conventional in its nature resting upon agreement, while estoppel is tortious in quality, being grounded on deceit, or, at least, upon conduct known, or which should be known, to be misleading. A waiver is recognized to give effect to the intention of the party waiving, while an estoppel is enforced to defeat the inequitable intent of the party estopped.” The rule established for this Circuit by the case of Equitable Life Assur. Soc. v." }, { "docid": "7041217", "title": "", "text": "§ 365(d)(4) was designed to eliminate. See Las Margaritas, 54 B.R. at 100. Notwithstanding the Court’s hesitation to apply these doctrines at all, the Court finds that the facts of this case do not give rise to waiver or estoppel against the lessor, Scott Motor Company. “Waiver is the intentional relinquishment of a known right with knowledge of its existence and the intent to relinquish it.” C.B.S., Inc. v. Merrick, 716 F.2d 1292, 1295 (9th Cir.1983). A waiver requires the existence at the time of the alleged waiver of a fight, privilege, advantage or benefit which may be waived. In re Haute Cuisine, 57 B.R. at 203. This equitable doctrine “serves to prevent a par ty from insisting on a right upon which he could have insisted earlier but has been found to have surrendered.” Orlik Ltd. v. Helme Products Inc., 427 F.Supp. 771, 776 (S.D.N.Y.1977). A waiver may be expressed or implied from conduct. Haute Cuisine at 203. However, if proof of waiver rests upon one’s acts, those acts “should be so manifestly consistent with and indicative of an intent to relinquish voluntarily a particular right that no other reasonable explanation of [one’s] conduct is possible.” Bechtel v. Liberty National Bank, 534 F.2d 1335, 1340 (9th Cir.1976). The lessor’s right to insist upon automatic termination of the lease and immediate surrender of the premises under § 365(d)(4) does not arise until after the 60-day period has expired. Therefore, until this occurs, there is no right in existence which can be waived. Moreover, Scott did not in fact waive his rights under § 365. There was no express waiver during the 60-day period. Being entitled to rent for the use of the premises, there is no waiver in accepting rent, as § 365(d)(3) expressly provides. Scott’s other conduct during this period is perfectly consistent with a “wait- and-see” approach with regard to the debt- or and Ezell. Scott testified that there had been a succession of different operators of the Spats business. In his discussion with Ezell on February 27, regarding assignment to her, Scott told her that any such" }, { "docid": "7948756", "title": "", "text": "does nothing inconsistent with the intention to rely on that right. Maryland Casualty Co. v. Palestine Fashions, Inc., 402 S.W.2d 883 (Tex.1966); Stowers v. Harper, 376 S.W.2d 34 (Tex.Civ.App.1964); Ryan v. Winegardner, 348 S.W.2d 284 (Tex.Civ.App.1961); Ford v. Culbertson, 308 S.W.2d 855 (Tex. 1958). It is undisputed in the record that there was no conscious, unequivocal expression by Wells Fargo to waive the May 8 no-offset agreement. Rather, Kozloff asserts that waiver can be inferred from evidence of silence or inaction, coupled with knowledge of a known right, for such an unreasonable period of time as to indicate an intention to waive the right. See Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210 (Tex.Civ.App. 1981). It should be remembered, however, that a waiver cannot be inferred from silence alone. In the absence of an express renunciation, there must be an act from which an intention to waive may be inferred or from which waiver follows as a legal result. Equitable Life Assurance Society v. Ellis, 137 S.W. 184 (Tex.Civ.App. 1910). A waiver will not be implied or presumed contrary to the intention of the party whose rights would be injuriously affected thereby, unless by his conduct, the opposing party has been misled to his prejudice into the honest belief that such waiver was intended or consented to. Miller v. Deahl, 239 S.W. 679 (Tex.Civ.App.1922). Thus, the two essential inquiries here are (1) whether Wells Fargo knew of the June offsets; and (2) whether by Wells Fargo’s conduct, Kozloff was misled to its prejudice that Wells Fargo had intended or consented to the waiver of the May 8th no-offset agreement. We turn first to the question of Wells Fargo’s knowledge of the June offsets. Kozloff asserts that subsequent to Greg Williamson’s telex authorization on May 31, 1979, it submitted a check and voucher which offset the sum of $113,750. The voucher and check carried the notation that certain numbered invoices were paid in full and showed the offset. Greg Williamson endorsed and remitted the check and voucher to Wells Fargo where it was processed. Williamson attached the check to a" }, { "docid": "8572191", "title": "", "text": "Son v. Superior Fire Ins. Co. (C.C.A. 5) 80 F.(2d) 311, 313. Courts so holding ordinarily do so upon the theory that there can be no waiver without an estoppel; that after default of an insured in giving notice and furnishing proofs, •he is not misled or prejudiced by the denial of liability by the insurer. While this court has expressed the view in some cases that the basis of waiver is estoppel—Equitable Life Assur. Soc. v. McElroy, 83 F. 631, 638; Williams v. Neely, 134 F. 1, 10, 69 L.R.A. 232; G. Amsinck & Co. v. Springfield Grocer Co., 7 F.(2d) 855, 860— yet in other cases it has recognized the distinction between waiver and estoppel which has come to be generally accepted. Thus in Missouri, K. & T. Trust Co. v. German Nat. Bank (C.C.A.) 77 F. 117, 121, it was said: “It is now well settled by the decided weight of authority that an insurance company may waive a forfeiture or a defense to an action on an insurance policy, by acts in pais from which an intention to waive may be inferred, and that such a waiver need not be based on a new consideration, or amount to a technical estoppel.” See, also, Orr v. Mutual Life Ins. Co. (C.C.A. 8) 64 F.(2d) 561. .We quote the following statement from .Vance on Insurance (2d Ed.) page- 451, as to the distinction between waiver and estoppel, with which we are in accord: “The terms ‘waiver’ and ‘estoppel’ as used in insurance law, are frequently-treated as synonymous, and as denoting similar concepts, or, in some instances, complementary concepts. In fact, however, the two concepts are notably distinct, and in the more carefully reasoned judicial decisions, this distinction is clearly recognized. “Waiver is usually defined as the intentional relinquishment of a known right, but it may be more narrowly and accurately defined as the intended giving up of a known privilege or power. It may be express, or implied from circumstances. It always involves consent, express or implied, but does not necessarily rise to the level of contract. “An" }, { "docid": "701225", "title": "", "text": "access to 3M’s confidential information, the Court of Appeals’ decision in Modern Controls, Inc. v. Andreadakis, 578 F.2d 1264 (8th Cir. 1978) mandates a finding that the covenant not to compete in the instant case is reasonable under the circumstances, as it is premised on 3M’s legitimate need to protect its confidential information, and is not, under Minnesota law, unreasonably broad. B. Waiver and Estoppel Based on the failure of 3M to advise Kirkevold that it would attempt to enforce the employment agreement’s covenant not to compete prior to his departure from 3M and the failure of 3M to attempt to enforce such restrictive covenants against other former employees who possessed knowledge of 3M’s confidential information, the defendants argue that 3M has waived its contractual rights or should be estopped for equitable reasons from asserting its rights under the 3M-Kirkevold employment agreement. For the reasons which follow, defendants’ arguments must be rejected. A waiver is an intentional relinquishment of a known right — in order to find a waiver of a contractual right, the facts must “reasonably lead to the inference that the person against whom it is to operate did in fact intend to waive his known right.” Colvin Lumber & Coal Co. v. J.A.G. Corp., 260 Minn. 46, 51, 109 N.W.2d 425, 429 (1961). A waiver can be inferred from conduct or silence. Id. Principles underlying the doctrine of equitable estoppel are similar. In Village of Wells v. Layne-Minnesota Co., 240 Minn. 132, 141, 60 N.W.2d 621, 627 (1953), the Minnesota Supreme Court stated: Equitable estoppel arises from the conduct of a party. It includes his spoken or written words, his positive acts, and his silence or negative omission to do anything. Its foundation is justice. Its object is to prevent the inequitable assertion or enforcement of claims or rights which might have existed or have been enforceable by other rules of law unless prevented by the estoppel. Its practical effect is, from motives of equity and fair dealing, to create and vest opposing rights in the party who obtains the benefit of the estoppel. It may arise" }, { "docid": "15543502", "title": "", "text": "Cunningham, 890 S.W.2d 442, 444 (Tenn.Ct.App.1994). “[T]he long-standing rule in Tennessee [is] that any contractual provision of a policy of insurance, whether part of an insuring, exclusionary, or forfeiture clause, may be waived by the acts, representations, or knowledge of the insurer’s agent.” Gaston, 120 S.W.3d at 819 (emphasis in original). Waiver may be either express or implied. Reed, 756 S.W.2d at 255. “An express waiver is an oral or written statement giving up known rights or privileges.” Grimsley v. Kittrell, No. M200502452-COA-R3-CV, 2006 WL 2846298, at *3 (Tenn.Ct.App. Sept. 29, 2006). An implied waiver, which in Tennessee appears to be synonymous with the doctrine of equitable estoppel in the context presented here, requires the following elements: “(1) [l]ack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such character as to change his position prejudicially.” Reed, 756 S.W.2d at 255. “[I]t is well-settled that an implied waiver will not be presumed. Rather, the party asserting waiver bears- the burden of proving that the party against whom waiver is asserted has, by a course of acts and conduct, or by so neglecting and failing to act, ... induce[d] a belief that it was the party’s intention and purpose to waive.” BMG Music v. Chumley, No. M200701075-COA-R9-CV, 2008 WL 2165985, at *5 (Tenn.Ct.App. May 16, 2008) (citing Ky. Nat’l Ins. Co. v. Gardner, 6 S.W.3d 493, 499 (Tenn.App.1999)). “In order to establish waiver by conduct, the proof must show some absolute action or inaction inconsistent with the claim or right waived.” Id. As with ERISA, the Tennessee Prompt Pay Act, TenmCode Ann. § 56-7-120, obligates health insurers to provide timely notice to claimants in writing of the reasons for denying an insurance claim in whole or in part. Id. § 56 — 7—120(ii) (health insurer must “notify the provider in writing why the remaining portion of the claim will not be paid”). Thus, to the extent that Aetna possessed a contractual right to reject Productive MD’s assignments, Productive" }, { "docid": "17653202", "title": "", "text": "contract as executed”); Conner v. Fisher, 136 Ind.App. 511, 202 N.E.2d 572, 575 (1964) (\"waiver” is the voluntary yielding up of some existing right); Bernstein v. Kapneck, 46 Md.App. 231, 417 A.2d 456, 464-65 (1980) (a release does not bar existing but unknown damages “not within the contemplation of the parties at the time of contracting for such release”); Kerr v. Small, 112 Mont. 490, 117 P.2d 271, 273 (1941) (equates \"waive” with \"acquiesc[e]” in tax deed validity contest); Gerbig v. Gerbig, 60 Nev. 292, 108 P.2d 317, 318 (1940) (equates \"waive[r]” with \"voluntar[yj” acceptance); Keelan v. Bell Comm. Research, 289 N.J.Super. 531, 674 A.2d 603, 609 (1996) (a release executed by one \"who is unaware of his rights is not a knowing or voluntaiy release”); Beneficial Finance Co. of Jersey City, Inc. v. Norton, 76 N.J.Super. 577, 185 A.2d 218, 220 (A.D.1962) (\"waiver” is a voluntary, clear and decisive act, implying an election to forego some advantage which the waiving party might have insisted on); Ed Black's Chevrolet Center, Inc. v. Melichar, 81 N.M. 602, 471 P.2d 172, 174 (1970) (“[i]n no case will a waiver be presumed or implied, contrary to the intention of the party whose rights would be injuriously affected thereby”); Vaughn, 648 A.2d at 40 (\"The courts of Pennsylvania have ... interpreted the release as covering only such matters as can fairly be said to have been within the contemplation of the parties when the release was given.”); New Life Corp. of America v. Thomas Nelson, Inc., 932 S.W.2d 921, 925 (Tenn.Ct.App.1996) (\"a demand of which a party was ignorant when the release was given is not as a rule ... embraced therein”); Panorama Residential Protective Ass’n v. Panorama Corp. of Wash., 97 Wash.2d 23, 640 P.2d 1057, 1060 (1982) (\"a waiver is an intentional and voluntary relinquishment of a known right”). The Court acknowledges that its jurisdictional analysis has rendered a result different from those of the parties. The Court concedes that the majority of the cases used in its jurisdictional survey did not involve underlying UCC contracts, but the analysis appears analogous to" }, { "docid": "6436698", "title": "", "text": "in support of its waiver/estoppel claim. First, Time Oil contends that defendants failed to comply with Wash.Admin. Code § 284-30-380, and therefore “absolutely waived” their policy defenses. The court rejects this argument. This regulation — regarding first-party property claims — does not appear to apply to the situation presented in this case. See, e.g., Buchanan v. Switzerland General Ins. Co., 76 Wash.2d 100, 106, 455 P.2d 344 (1969). Furthermore, Time Oil has cited no court which has held that failure to specifically comply with this regulation amounts to a waiver of all defenses. Anticipating this conclusion, Time Oil also presents standard waiver and estoppel arguments. Waiver, either express or implied, is defined as the voluntary and intentional relinquishment or abandonment of a known right. It is unilateral in that it arises out of either action or nonaction on the part of the insurer or its duly authorized agents and rests upon circumstances indicating or inferring that the relinquishment of the right was voluntarily intended by the insurer with full knowledge of the facts pertaining thereto. See, e.g., Buchanan, 76 Wash.2d at 108, 455 P.2d 344; Logan v. Northwest Ins. Co., 45 Wash.App. 95, 724 P.2d 1059 (1986). Estoppel, by contrast, refers to a preclusion from asserting a right by an insurer where it would be inequitable to permit the assertion. It arises by operation of law, and rests upon acts, statements or conduct on the part of the insurer or its agents which lead or induce the insured, in justifiable reliance thereupon, to act or forebear to act to his prejudice. See, e.g., Buchanan, 76 Wash.2d at 108, 455 P.2d 344; Harbor Air v. Bd. of Tax Appeals, 88 Wash.2d 359, 560 P.2d 1145 (1977). As a general matter, waiver and estoppel claims implicate factual issues which are not appropriate for resolution on a motion for summary judgment. For instance, a waiver claim depends on whether the insurer or insured intended to relinquish a known right. See, e.g., Saunders v. Lloyd’s of London, 113 Wash.2d 330, 340, 779 P.2d 249 (1989). Similarly, an estoppel claim depends upon the whether the" }, { "docid": "12273830", "title": "", "text": "legal status of the “rights” was then uncertain. The crux is that Buder & Buder, as attorneys for all of these parties, did not inform the remaindermen of this opposition of interests and that there was this uncertainty in their rights so that they might have had opportunity to take a position to protect themselves. We need not impugn the motives of Buder & Buder in misleading all parties to believe a commission was legally due the trustees. It is enough to vitiate the contract that Buder & Buder, while acting as counsel for all, did not inform the remaindermen of this opposition of interests. Another aspect of this situation is that this action of the trustees in insisting upon this compensation was detrimental to the remaindermen. Whether the trustees, as to these remaindermen, were trustees or quasi-trustees (as standing in the place of the life tenant, being trustees of an estate coated by her) their duty was to turn over tjhis corpus unimpaired by any act of theirs Fiske v. Buder, 8 Cir., 125 F.2d 841, 847; Buder v. Franz, 8 Cir., 27 F.2d 101, 114; Warfield v. Bixby, 8 Cir., 51 F.2d 210, 213, 214; Collins v. Hartford Accident & Indemnity Co., 178 Va. 501, 17 S.E.2d 413, 137 A.L.R. 1054. This contract does not defeat the surcharge. The contentions of appellants as to res judicata and laches have been directly ruled against them by this Court in Fiske v. Buder, 125 F.2d 841, and (as to laches) see Bickel v. Argyle Inv. Co. 343 Mo. 456, 121 S.W.2d 803, 807. The waiver urged here is one implied from alleged knowledge and delayed action. A necessary element of waiver is t!he intentional relinquishment of a known right. Masden v. Travelers’ Ins. Co., 8 Cir., 52 F.2d 75, 76, 79 A.L.R. 469; Liggett & Myers Tobacco Co. v. DeParcq, 8 Cir., 66 F.2d 678, 686. While waiver may be implied by acts or a course of conduct from which an intention to waive may reasonably be inferred (56 Am.Jur. p. 117, § 17 and citations in footnote 8), yet" }, { "docid": "15113429", "title": "", "text": "only the Supreme Court of Arkansas holds that the incontestable clause of a life policy runs from the date of its issue with respect to a suit brought to set aside a reinstatement fraudulently procured. See New York Life Ins. Co. v. Campbell, 191 Ark. 54, 83 S.W.2d 542. That case holds that the reinstatement of a life policy does not create a new contract, but revives the original contract, and that the incontestable clause does not rim anew from the date of reinstatement. This ruling, in so far as it relates to a suit to set aside a fraudulent reinstatement, is not only clearly contrary to the weight of authority (see Rosenthal et al. v. New York Life Ins. Co., 8 Cir., 94 F.2d 675, 678, 679) but is also opposed to the decision of the Supreme Court of Missouri in State ex rel. Metropolitan Life Insurance Co. v. Shain, supra, holding a reinstated policy to be, in effect, a new contract. 1 2. We cannot conceive that there is any merit in appellants’ claim that the insurer waived its right to cancel these rein-statements for fraud or was guilty of laches because it waited for thirty days after discovery of the fraud before notifying the insured of its intention to rescind the rein-statements. We think that the company acted with reasonable promptness in giving notice of rescission. There is no evidence in the record which would justify a finding that the insured suffered any prejudice by reason of the thirty days’ delay. At the time of reinstatement, Joseph Rosenthal was in the last stages of syphilis, and it is apparent that he could not honestly have procured life insurance from any source. In State ex rel. Metropolitan Life Insurance Co. v. Shain, supra, 334 Mo. 385, 66 S.W.2d 871, 874, the Supreme Court of Missouri, in speaking of the general principles of the law of waiver, quoted the following language: “ ‘A waiver is an intentional relinquishment of a known right. To make out a case of implied waiver of a legal right, there must be a clear," }, { "docid": "21801721", "title": "", "text": "when it is present and has existed continuously for not less than three months.” Concededly, these were Missouri contracts. The finding of the trial court that the insured was totally and permanently disabled, during this period, is abundantly supported by evidence within the rule of decision laid down by Missouri courts. Stoner v. New York L. Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284; Wiener v. Mutual Life Ins. Co. of New York, Mo. Sup., 179 S.W.2d 39; Heald v. Aetna Life Ins. Co., 340 Mo. 1143, 104 S.W.2d 379, 382; Comfort v. Travelers Ins. Co., Mo. App., 131 S.W.2d 734, 740; Stoner v. New York Life Ins. Co., 232 Mo.App. 1048, 114 S.W.2d 167; Id., Mo.App., 90 S.W.2d 784. Lengthy recital of the evidence would serve no useful purpose here. The fact situation will hereinafter appear sufficiently. 2. Waiver by insmed. It is contended that the insured waived his claim for disability for this period because of a voluntary termination of his claim during- the first period and because of his failure to assert this claim until after his claim (made in June, 1939) for the second period had been allowed. The Missouri courts have many times stated the generally accepted definition of waiver to be an intentional relinquishment of a known right. State ex rel. Met. Life Ins. Co. v. Shain, 334 Mo. 385, 66 S.W.2d 871, 874; Williams v. Chicago, Santa Fe, etc., Railway Co., 153 Mo. 487, 54 S.W. 689. The pertinent fact situation is that since 1917 insured had suffered from a condition known as “heart block,” from which develops a permanent and serious heart ailment known as “Stokes-Adams heart disease.” This ailment becomes progressively worse and results ultimately in death. In 1921, these policies were issued and an additional — “rated up” —premium charge made. Why this additional charge was made does not appear but because of his then heart condition and because he had had some difficulty in procuring insurance, it is entirely possible that this rating up was because of this physical condition. In 1930, this heart condition became" }, { "docid": "7041218", "title": "", "text": "with and indicative of an intent to relinquish voluntarily a particular right that no other reasonable explanation of [one’s] conduct is possible.” Bechtel v. Liberty National Bank, 534 F.2d 1335, 1340 (9th Cir.1976). The lessor’s right to insist upon automatic termination of the lease and immediate surrender of the premises under § 365(d)(4) does not arise until after the 60-day period has expired. Therefore, until this occurs, there is no right in existence which can be waived. Moreover, Scott did not in fact waive his rights under § 365. There was no express waiver during the 60-day period. Being entitled to rent for the use of the premises, there is no waiver in accepting rent, as § 365(d)(3) expressly provides. Scott’s other conduct during this period is perfectly consistent with a “wait- and-see” approach with regard to the debt- or and Ezell. Scott testified that there had been a succession of different operators of the Spats business. In his discussion with Ezell on February 27, regarding assignment to her, Scott told her that any such request must be in writing which was never done. Scott had no way of judging the seriousness of Ezell’s intentions to formally take over the lease. Less than two months after this discussion, the 60-day period expired and Scott filed his Motion for a determination that the lease was terminated under § 365(d)(4), clearly indicating his intention to assert those rights. There is no basis for the Court to find a waiver by conduct. Whereas a waiver is a voluntary and intentional abandonment or relinquishment of a known right, equitable estoppel may arise even though there was no intention on the part of the party estopped to relinquish or change any existing right. Therefore, even though a party has not waived a right, he may be estopped to assert it. Saverslak v. Davis-Cleaver Produce Co., 606 F.2d 208, 213 (7th Cir.1979) cert. denied 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 762 (1980). The defense of es-toppel is an equitable principle based on the acts or conduct of a party against whom it is invoked." }, { "docid": "7948755", "title": "", "text": "June checks and vouchers, Wells Fargo had knowledge that offsets had taken place. By failing to act on this supposed knowledge, Kozloff argued that Wells Fargo waived its rights in the May 8 agreement. If Wells Fargo is correct in its contention that it had no knowledge of the June offsets and, therefore, did not, by inaction in the the face of such knowledge, waive its no-offset agreement, then the jury’s finding of waiver (Issue No. 3, note 1 supra) is supported by insufficient evidence, requiring j.n.o.v. as to that issue. For the reasons stated below, we so hold. Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. Massachusetts Bonding and Insurance Co. v. Orkin Exterminating Co., 416 S.W .2d 396 (Tex.1967); Brightwell v. Norris, 242 S.W.2d 201 (Tex.Civ.App.1951); Butler v. Employers Casualty Co., 241 S.W.2d 964 (Tex.Civ.App.1951); See cases cited at 60 Tex.Jur.2d Waiver § 1, n. 1. There can be no waiver of a right if a person sought to be charged with waiver says or does nothing inconsistent with the intention to rely on that right. Maryland Casualty Co. v. Palestine Fashions, Inc., 402 S.W.2d 883 (Tex.1966); Stowers v. Harper, 376 S.W.2d 34 (Tex.Civ.App.1964); Ryan v. Winegardner, 348 S.W.2d 284 (Tex.Civ.App.1961); Ford v. Culbertson, 308 S.W.2d 855 (Tex. 1958). It is undisputed in the record that there was no conscious, unequivocal expression by Wells Fargo to waive the May 8 no-offset agreement. Rather, Kozloff asserts that waiver can be inferred from evidence of silence or inaction, coupled with knowledge of a known right, for such an unreasonable period of time as to indicate an intention to waive the right. See Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210 (Tex.Civ.App. 1981). It should be remembered, however, that a waiver cannot be inferred from silence alone. In the absence of an express renunciation, there must be an act from which an intention to waive may be inferred or from which waiver follows as a legal result. Equitable Life Assurance Society v. Ellis, 137 S.W. 184 (Tex.Civ.App. 1910). A waiver will not" }, { "docid": "7041216", "title": "", "text": "expiration of a lease creates a month to month tenancy at best); Montana-Fresno Oil Co. v. Powell, 219 Cal.App.2d 653, 669-70, 33 Cal.Rptr. 401 (1963) (once oil and gas lease has expired by its own terms, no subsequent action or inaction of lessor can estop him from asserting termination, nor subject him to defenses of laches or waiver). During the 60-day period, the debt- or is required by the Code to perform timely all obligations under the lease, and the lessor’s acceptance of such performance cannot constitute a waiver or relinquishment of any of his rights under state law or other provisions of the Bankruptcy Code. § 365(d)(3); Re-Trac, 59 B.R. at 256-57. Finally, allowing the debtor to raise these relatively unstructured equitable doctrines as defenses leads the court right back to the undesirable position of having to judge the meaning of the conduct and conversations of the parties, see Treat Fitness Center at 879, and exposes the lessor of non-residential real property to a range of uncertainties regarding the status of his lease which § 365(d)(4) was designed to eliminate. See Las Margaritas, 54 B.R. at 100. Notwithstanding the Court’s hesitation to apply these doctrines at all, the Court finds that the facts of this case do not give rise to waiver or estoppel against the lessor, Scott Motor Company. “Waiver is the intentional relinquishment of a known right with knowledge of its existence and the intent to relinquish it.” C.B.S., Inc. v. Merrick, 716 F.2d 1292, 1295 (9th Cir.1983). A waiver requires the existence at the time of the alleged waiver of a fight, privilege, advantage or benefit which may be waived. In re Haute Cuisine, 57 B.R. at 203. This equitable doctrine “serves to prevent a par ty from insisting on a right upon which he could have insisted earlier but has been found to have surrendered.” Orlik Ltd. v. Helme Products Inc., 427 F.Supp. 771, 776 (S.D.N.Y.1977). A waiver may be expressed or implied from conduct. Haute Cuisine at 203. However, if proof of waiver rests upon one’s acts, those acts “should be so manifestly consistent" }, { "docid": "32455", "title": "", "text": "Matador, St. Paul twice charged and accepted a deductible relating to the pollution incident even after it became aware of the late notice. Moreover, Matador contends that St. Paul attended a strategy session with Matador and the other owners of the well without any notice of reservation of its rights. According to Matador, St. Paul cannot now deny coverage. Under Texas law, an insurance company, through its actions, may waive a condition precedent to performance on an insurance policy, or become estopped from denying coverage under the policy. See FDIC v. United States Fire Ins. Co., 956 F.Supp. 701, 705 (N.D.Tex.1996) (listing Texas cases). Waiver involves the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. See Salzstein v. Bekins Van Lines Inc., 993 F.2d 1187, 1191 (5th Cir.1993) (‘Waiver involves the voluntary or intentional surrender of a known right.”). Estoppel involves the reasonable reliance of one party on the conduct or statements of another party. If the relying party suffers harm as a result of its reliance, the law estops the other party from disavowing its earlier conduct or statements. See id. Under Texas law, however, waiver and estoppel cannot operate to change either the risks covered or the insurance extended under a policy: Whereas waiver and estoppel may operate to avoid forfeiture of a policy and may prevent an insurance company from avoiding payment because of the failure on the part of the insurer to comply with some requirement of the policy, waiver and estoppel cannot enlarge the risks covered by a policy and cannot be used to create a new and different contract with respect to the risk covered and the insurance extended. The Minnesota Mutual Life Ins. Co. v. Morse, 487 S.W.2d 317, 320 (Tex.1972); see also Texas Farmers Ins. Co. v. McGuire, 744 S.W.2d 601, 603 (Tex.1988). Applying waiver as requested by Matador would substantially alter and enlarge the risks covered under the insurance policy. In other words, holding that coverage exists, despite Matador’s untimely notice, would “materially change the scope of coverage, would be contrary to the plain language" }, { "docid": "15543501", "title": "", "text": "of the Medicare-governed claim. 4. Estoppel and Waiver as to the Tennessee-Governed Claims In Tennessee, “waiver is a voluntary relinquishment by a party of a known right.” Reed v. Wash. Cnty. Bd. of Educ., 756 S.W.2d 250, 255 (Tenn.1988) (quoting Chattem, Inc. v. Provident Life & Accident Ins. Co., 676 S.W.2d 953, 955 (Tenn.1984)). The party must know that it has the right before it can waive it. See Reed, 756 S.W.2d at 255 (“If an individual does not know of his rights or if he fails to understand them he cannot waive those rights.”) A waiver may take the form of (1) express declarations, (2) acts and declarations manifesting an intent and purpose not to claim the supposed advantage, or (3) failing to act when action would reasonably have been expected. See Gaston v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn.2003); Jenkins Subway, Inc. v. Jones, 990 S.W.2d 713, 722 (Tenn.Ct.App.1998) (citing Baird v. Fidelity-Phenix Fire Ins. Co., 178 Tenn. 653, 162 S.W.2d 384, 389 (1942)); Stovall of Chattanooga, Inc. v. Cunningham, 890 S.W.2d 442, 444 (Tenn.Ct.App.1994). “[T]he long-standing rule in Tennessee [is] that any contractual provision of a policy of insurance, whether part of an insuring, exclusionary, or forfeiture clause, may be waived by the acts, representations, or knowledge of the insurer’s agent.” Gaston, 120 S.W.3d at 819 (emphasis in original). Waiver may be either express or implied. Reed, 756 S.W.2d at 255. “An express waiver is an oral or written statement giving up known rights or privileges.” Grimsley v. Kittrell, No. M200502452-COA-R3-CV, 2006 WL 2846298, at *3 (Tenn.Ct.App. Sept. 29, 2006). An implied waiver, which in Tennessee appears to be synonymous with the doctrine of equitable estoppel in the context presented here, requires the following elements: “(1) [l]ack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such character as to change his position prejudicially.” Reed, 756 S.W.2d at 255. “[I]t is well-settled that an implied waiver will not be presumed." } ]

[ { "docid": "22102521", "title": "", "text": "a serious health condition that makes the employee unable to perform the functions of the position of such employee,” 29 U.S.C. § 2612(a)(1), and the right following leave “to be restored by the employer to the position of employment held by the employee when the leave commenced” or to an equivalent position, 29 U.S.C. § 2614(a)(1). To preserve the availability of these rights, and to enforce them, the FMLA creates two types of claims: interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act, see 29 U.S.C. § 2615(a)(1), and retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act, see 29 U.S.C. § 2615(a)(1) & (2); 29 C.F.R. § 825.220(c) (“An employer is prohibited from discriminating against employees ... who have used FMLA leave.”). To state a claim of interference with a substantive right, an employee need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied. O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1353-54 (11th Cir.2000); King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir.1999). In contrast, to succeed on a retaliation claim, an employee must demonstrate that his employer intentionally discriminated against him in the form of an adverse employment action for having exercised an FMLA right. King, 166 F.3d at 891. In other words, a plaintiff bringing a retaliation claim faces the increased burden of showing that his employer’s actions “were motivated by an impermissible retaliatory or discriminatory animus.” Id. While we agree with the district court, for the reasons discussed below, that Strickland could not survive summary judgment on his retaliation claim, we conclude that the court erred in not considering his interference claim — a claim as to which summary judgment would have been inappropriate. B. When a plaintiff asserts a claim of retaliation under the FMLA, in the absence of direct evidence of the employer’s intent, we apply the same burden-shifting framework established by the Supreme Court in McDonnell" } ]

[ { "docid": "19885524", "title": "", "text": "91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When reviewing a grant of summary judgment, we view all facts in the light most favorable to the nonmoving party, and we draw all reasonable inferences in her favor. Id. The FMLA establishes two categories of protections for employees. First, the Act provides eligible employees the right to take unpaid leave for a period of up to twelve work weeks in any twelve-month period because of a serious health condition, including the serious health condition of a family member. King v. Prefeired Technical Group, 166 F.3d 887, 891 (7th Cir.1999). After the period of qualified leave expires and the employee returns to work, she is entitled to be reinstated to her former position or to an equivalent position with the same benefits and terms of employment. Id.; 29 U.S.C. § 2614(a). 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 the Act. 29 U.S.C. § 2615(a)(1). In addition to the substantive guarantees contemplated by the Act, the FMLA also affords employees protection in the event that they are retaliated against because of their choice to exercise their rights under the Act. King, 166 F.3d at 891 (citing 29 U.S.C. § 2615(a)(1) & (2)). Specifically, “[a]n employer is prohibited from discriminating against employees ... who have used FMLA leave.” Id. (citing 29 C.F.R. § 825.220(c)). On appeal, Ms. Lewis does not allege that the defendants interfered with her substantive rights under the FMLA; she contends only that she was retaliated against for taking FMLA-protected leave. A plaintiff can avert summary judgment on an FMLA retaliation claim either by proffering direct or circumstantial evidence of her employer’s discriminatory motivation, or by establishing that, after taking FMLA leave, she “was treated less favorably than other similarly situated employees who did not take FMLA leave, even though [s]he was performing [her] job in a satisfactory manner.” Burnett v. LFW, Inc., 472 F.3d 471, 481-82 (7th Cir.2006). The first" }, { "docid": "4895186", "title": "", "text": "F.3d 155, 161 (2d Cir.1999). The FMLA prohibits an “employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the statute. 29 U.S.C. § 2615(a)(1). To this end, “[t]he FMLA ‘creates a private right of action to seek both equitable relief and money damages against any employer (including a public agency) in any Federal or State court of competent jurisdiction’ should that employer ‘interfere with, restrain, or deny the exercise of FMLA rights.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 174 (2d Cir.2006) (citing Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 724-25, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003)). In order to establish a prima facie case for interference under the FMLA, a plaintiff must establish: “ ‘(1) that she is an “eligible employee” under the FMLA; (2) that defendants constitute an employer under the FMLA; (3) that she was entitled to leave under the FMLA; (4) that she gave notice to defendants of her intention to take leave; and (5) that defendants denied her benefits to which she was entitled by the FMLA.’” Kennebrew v. N.Y. City Hous. Auth., No. 01 CIV. 1654, 2002 WL 265120, at *19 (S.D.N.Y. Feb.26, 2002) (quoting Santos v. Knitgoods Workers’ Union, No. 99 Civ. 1499, 1999 WL 397500, at *3 (S.D.N.Y. June 15, 1999)); see also Geromanos v. Columbia Univ., 322 F.Supp.2d 420, 427 (S.D.N.Y.2004); Sabatino v. Flik Int’l Corp., 286 F.Supp.2d 327, 335-36 (S.D.N.Y.2003) (Conner, J.). Defendant first argues that plaintiff was not an eligible employee as of March 18, 2003. “The term ‘eligible employee’ means an employee who has been employed ... for at least 12 months by the employer ... and ... for at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611. “The determining factor is the number of hours an employee has worked for the employer within the meaning of the [Fair Labor Standards Act (‘FLSA’) ].” 29 C.F.R. § 825.110(c). Pursuant to the regulations of the FLSA, “[pjeriods during which an employee is completely" }, { "docid": "13240714", "title": "", "text": "or has testified or is about to testify in any inquiry or proceeding relating to any right provided under this subchapter). The Second Circuit has recognized two distinct FMLA causes of action-interference claims based upon § 2615(a)(1), and retaliation claims based upon § 2615(a)(2) and § 2615(b). Potenza v. City of New York, 365 F.3d 165, 167-68 (2d Cir.2004); Wanamaker, 899 F.Supp.2d at 204. With interference claims, the issue is simply whether the employer provided the employee with the entitlements set forth in the FMLA — for example, a twelve-week period of leave or reinstatement following a medical leave. The employer’s subjective intent is not an issue. Reid-Falcone v. Luzerne Cnty. Cmty. Coll., No. 3:CV-02-1818, 2005 WL 1527792, at *4 (M.D.Pa. June 28, 2005). With retaliation claims, however, retaliatory or discriminatory intent is an issue. Id. at *9. In this case, Plaintiff alleges both. In Count I of her Amended Complaint, she claims that Defendant interfered with the exercise of her rights under the FMLA by terminating her employment and refusing to restore her to her position or an equivalent position (Pl.’s Am. Comp. ¶ 44) and by terminating her because it anticipated that she would need to take FMLA leave in the future (PL’s Am. Comp. ¶ 45). Plaintiff further alleges in Count II that Defendant retaliated against her by terminating her for her use of FMLA leave and her anticipated future use of protected FMLA leave, as well as her complaints about Defendant’s conduct that violated her rights under the FMLA (PL’s Am. Comp. ¶ 48). A. Plaintiff’s FMLA Interference Claim To establish a prima facie case of interference with FMLA rights under 29 U.S.C. § 2615(a)(1), a plaintiff must establish five elements: (1) that she is an eligible employee under the FMLA; (2) that the defendant is an employer as defined by the FMLA; (3) that she was entitled to leave under the FMLA; (4) that she gave notice to the defendant of her intention to take leave; and (5) that she was denied benefits to which she was entitled under the FMLA. Basso v. Potter, 596" }, { "docid": "6280698", "title": "", "text": "Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). Plaintiff Reilly alleges two causes of action under the FMLA: (i) interference with FMLA rights and (ii) retaliation for exercising her FMLA rights. (See compl. ¶¶ 83-90.) Neither has merit. i. FMLA Interference Claims To establish an interference claim pursuant to 29 U.S.C. § 2615(a)(1), a plaintiff need only prove that an “employer in some manner impeded the employee’s exercise of his or her right[s]” protected provided by the FMLA. Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 176 (2d Cir.2006) (citing King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir.1999)). To establish a prima facie claim of interference with rights under the FMLA, a plaintiff must establish by a preponderance of the evidence that: “(1) she is an eligible employee under the FMLA; (2) defendants constitute an employer under the FMLA; (3) she was entitled to leave under the FMLA; (4) that she gave notice to defendants of her intention to take leave; and (5) defendants denied her benefits to which she was entitled by the FMLA.” Esser v. Rainbow Advertising Sales Corp., 448 F.Supp.2d 574, 580 (S.D.N.Y.2006) (collecting cases). At first blush, it does not appear that Revlon interfered with Plaintiffs rights under FMLA. Reilly admits that she took her entire twelve weeks of FMLA leave, and that Revlon provided salary and health benefits during the twelve-week period, (D. Rule 56.1 Stmt. ¶ 63). She also admits that Revlon was willing to reinstate her to her previous position at the expiration of her FMLA leave and would have done so had plaintiff been medically capable of coming back to work. (Id. ¶ 78.) It follows that Reilly did not lose any benefit and was not denied any right — twelve weeks leave and a guarantee of reinstatement at the end of the twelve weeks— under FMLA. Plaintiff nonetheless contends that her FMLA leave was interfered with in two distinct ways. First, Plaintiff contends that Krasner’s remarks and behavior during her pregnancy caused her to fear retaliation and," }, { "docid": "4895185", "title": "", "text": "documentation. Nonetheless, defendant failed to reinstate plaintiff to her former position or to an equivalent position. In addition, plaintiff claims that she was terminated in June 2003 prior to the exhaustion of her FMLA leave. Defendant maintains that plaintiff was not eligible for FMLA leave as of March 18, 2003 and therefore was not entitled to reinstatement on April 28, 2003 or any time thereafter. The FMLA provides eligible employees the right to take up to twelve work weeks per year of unpaid leave due to a serious health condition that prevents the employee from performing her work function. See 29 U.S.C. § 2612(a)(1). At the conclusion of the leave, the employee has the right to return to the position that she held before taking leave, or to an equivalent position. See id. § 2614(a). However, the employee has no right to be restored to her prior position if the employee is unable to perform an essential job function because of a physical or mental impairment. See Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 161 (2d Cir.1999). The FMLA prohibits an “employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the statute. 29 U.S.C. § 2615(a)(1). To this end, “[t]he FMLA ‘creates a private right of action to seek both equitable relief and money damages against any employer (including a public agency) in any Federal or State court of competent jurisdiction’ should that employer ‘interfere with, restrain, or deny the exercise of FMLA rights.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 174 (2d Cir.2006) (citing Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 724-25, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003)). In order to establish a prima facie case for interference under the FMLA, a plaintiff must establish: “ ‘(1) that she is an “eligible employee” under the FMLA; (2) that defendants constitute an employer under the FMLA; (3) that she was entitled to leave under the FMLA; (4) that she gave notice to defendants of her intention to take leave; and" }, { "docid": "14804168", "title": "", "text": "judgment de novo. South, 495 F.3d at 751. We view all facts and the reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Id. Summary judgment is proper only where “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.” Id. (citing Fed.R.Civ.P. 56(c)). A. FMLA Interference The FMLA entitles an eligible employee up to twelve work weeks of leave during a twelve-month period where the employee has a serious health condition that renders her unable to perform the functions of her position. 29 U.S.C. § 2612(a). The FMLA also permits the employee to take leave intermittently or on a reduced schedule when medically necessary. Id. § 2612(b). Under the FMLA, it is unlawful for an employer to interfere with an employee’s attempt to exercise the rights established by the FMLA. Id. § 2615(a). An employee does not need to be aware of her rights in order to invoke them; “[t]he employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.” 29 C.F.R. § 825.303(b). To prevail on an FMLA interference claim, an employee must show that her employer deprived her of an FMLA entitlement. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir.2006). The employee 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 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. Id. We address each of the parties’ arguments: that the district court failed to acknowledge Riverside’s factual admission, that Ridings failed to invoke her FMLA rights, that Riverside failed to responsively answer her questions about FMLA certification, that Riverside was attempting to force Ridings to take intermittent leave, that Riverside never requested" }, { "docid": "16433852", "title": "", "text": "to establish a prima facie case for interference. Columbia asserts that it did not interfere with plaintiffs rights under FMLA, since Geromanos received all of the leave to which she was statutorily entitled (12 weeks). Plaintiff avers that she has indeed established a prima facie case and that issues of fact prevent summary judgment. I conclude that Plaintiff has not presented sufficient evidence from which a reasonable jury could find that her rights under FMLA were violated. Geromanos did in fact receive her entire FMLA entitlement (twelve weeks), in addition to benefits beyond those required by FMLA. And there is no evidence that she was discharged for taking FMLA leave. Defendant’s Motion for Summary Judgment is granted. C. Plaintiff Has Failed To Establish A Prima Facie Case For Interference To make out a prima facie case on a claim for interference with FMLA rights under 29 U.S.C. § 2615(a)(1), a plaintiff must establish five elements: 1) that she is an eligible employee under the FMLA; 2) that defendant is an employer as defined in FMLA; 3) that she was entitled to leave under FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under FMLA. (Def. Mem., 10-11 citing Santos v. Knitgoods Workers’ Union, Local 155, No. 99 Civ. 1499, 1999 WL 397500 at *3 (S.D.N.Y. June 15, 1999), aff'd, 252 F.3d 175 (2d Cir.2001)); see also Mayo v. Columbia University, No. 01 Civ.2002, 2003 WL 1824628, *8 (S.D.N.Y. April 7, 2003); Brenlla v. LaSorsa Buick Pontiac Chevrolet, Inc., No. 00 Civ. 5207, 2002 WL 1059117 (S.D.N.Y. May 28, 2002). Plaintiff has failed to establish a prima facie case because there is no evidence that Columbia denied her any benefits to which she was entitled under FMLA. See Santos, 1999 WL 397500 at *3. FMLA grants employees two distinct rights: the right to take leave for the treatment of a serious health condition (29 U.S.C. § 2612(a)(1)) and the right to be reinstated to the former position or an equivalent position at the" }, { "docid": "23216676", "title": "", "text": "employer continues to utilize an employee from the temporary or leasing agency.” 29 C.F.R. § 825.106(e). As discussed infra., USCAR did continue to utilize an employee from the leasing agency; in fact, it specifically requested that Bartech provide a replacement employee to take over Grace’s IT responsibilities. Consequently, for purposes of analyzing Grace’s FMLA claim, Bartech is the primary employer and USCAR is the secondary employer. (D) Plaintiff has raised a cognizable claim that her FLMA rights were violated It is unlawful for employers to “interfere with, restrain or deny the exercise of or attempt to exercise, any [FMLA] right provided.” 29 U.S.C. § 2615(a)(1); Hoge v. Honda of Am. Mfg., 384 F.3d 238, 244 (6th Cir.2004). Qualifying employees who return to work within the 12-week period of their unpaid medical leave are entitled to be restored to “the position of employment held by the employee when the leave commenced,” or “to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1). Grace’s allegation of a violation of this right, which we have previously described as the “entitlement” or “interference” theory arising from 29 U.S.C. § 2615(a)(1), is different from a “retaliation” or “discriminatory” theory arising from 29 U.S.C. § 2615(a)(2). See Hoge, 384 F.3d at 244. As discussed supra, a secondary employer who interferes with an employee’s effort to return to her position is also liable under the Act. To prevail on the entitlement theory claim (i.e. failure to reinstate), an employee must prove that: (1) she was an eligible employee, (2) the defendant was an employer as defined under the FMLA, (3) she was entitled to leave under the FMLA, (4) she gave the employer notice of her intention to take leave, and (5) the employer denied the employee FMLA benefits to which she was entitled. Edgar v. JAG Prods., 443 F.3d 501, 507 (6th Cir.2006). However, “[a]n employee returning from FMLA leave is not entitled to restoration unless he would have continued to be employed if he had not taken FMLA leave.” Hoge, 384 F.3d at 245. As" }, { "docid": "4264891", "title": "", "text": "construed the factual record in Pulte’s favor instead of hers. We review the court’s summary-judgment ruling de novo, construing all facts and reasonable inferences in the light most favorable to Nicholson, the nonmoving party. Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir.2011). Summary judgment is appropriate when the material facts are undisputed and the moving party is entitled to judgment as a matter of law. Id. The FMLA permits an eligible employee to take up to 12 weeks of leave per year “to care for ... [a] parent [with] a serious health condition.” 29 U.S.C. § 2612(a)(1)(C). An employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise” any FMLA rights. Id. § 2615(a)(1). Nor may an employer retaliate against an employee for exercising FMLA rights. See id. § 2615(a)(2) (prohibiting “any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this sub-chapter”); id. § 2615(b) (making it unlawful for any employer to discharge or discriminate against anyone for exercising rights under the FMLA); see also Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir.2005) (“We have construed [§ 2615(a)(2) and (b) ] to create a cause of action for retaliation.”). An interference claim requires proof that the employer denied the employee FMLA rights to which she was entitled; a retaliation claim requires proof of discriminatory or retaliatory intent. Goelzer v. Sheboygan County, Wis., 604 F.3d 987, 995 (7th Cir.2010); Kauffman, 426 F.3d at 884-85. A. FMLA Interference To prevail on an FMLA interference claim, an employee must show that: (1) she was eligible for FMLA protection; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she provided sufficient notice of her intent to take FMLA leave; and (5) her employer denied her the right to FMLA benefits. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir.2006). Here, the focus is on the fourth and fifth elements: whether Nicholson provided sufficient notice to Naatz or Wilhelm of her intent to" }, { "docid": "4197793", "title": "", "text": "perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). In doing so, the statute “accommodates the important societal interest in assisting families by establishing minimum labor standard[s] for leave.” H.R. Rep. No. 103-8(1), 103d Cong., 1st Sess. 1993, at *21, U.S.Code Cong. & Admin.News 1993, pp. 3, 6. The FMLA prohibits employers from “interfer[ing] with, restraining], or denying] the exercise of or the attempt to exercise, any right” under the statute. 29 U.S.C. § 2615(a). It also prohibits an employer from discriminating or retaliating against an employee for taking FMLA leave. 29 U.S.C. § 2615(a)(2). Thus, the legislation provides recovery under two theories: interference and retaliation. Hunter v. Valley View Local Schs., 579 F.3d 688, 691 (6th Cir.2009), reh’g & reh’g en banc denied (Oct. 26, 2009). FMLA Interference. In order to prevail on an FMLA interference claim, the plaintiff must show that “(1) [she] is an eligible employee; (2) the defendant is an [FMLA] employer; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of [her] intention to take leave; and (5) the employer denied the employee FMLA benefits to which [she] was entitled.” Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.2003), reh’g & reh’g en banc denied (Feb. 5, 2004) (internal citations and quotation marks omitted). A plaintiff cannot establish a prima facie case of FMLA interference without demonstrating that she suffered from a “serious health condition.” See Morris v. Family Dollar Stores of Ohio, Inc., 320 Fed.Appx. 330, 337 (6th Cir.), cert. denied — U.S. --, 130 S.Ct. 418, 175 L.Ed.2d 272 (2009). It is the position of the Defendant that Taylor has failed to do so. The term “serious health condition” means “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). The Department of Labor’s regulations give a more detailed explanation of what qualifies as a serious health condition under § 261" }, { "docid": "11747886", "title": "", "text": "same day for policy and procedure violations. Accordingly, summary judgment is granted to BBW ánd McKay-Loescher in her official capacity on Perry’s FMLA retaliation claim. 2. Interference Although Perry’s wrongful termination claim sounds in retaliation under both § 2615(a)(1) and (a)(2), Perry also alleges interference under § 2615(a)(1), and BBW moves for summary judgment on the interference claim. It is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” under the FMLA. 29 U.S.C. § 2615(a)(1). To prevail on an FMLA interference claim, an employee must demonstrate that: (1) she was eligible for FMLA protection; (2) her employer was covered by the FMLA; (3) she was entitled to FMLA leave; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her benefits to which she was entitled. Brown v. Auto. Components Holdings, LLC, 622 F.3d 685, 689 (7th Cir.2010). It is undisputed that Perry satisfies the first four prongs. However, the parties disagree as to whether Perry can show that BBW denied her a benefit to which she was entitled when BBW terminated her employment. Unlike the retaliation claim, an interference claim does not require a showing of intent. To succeed on such a claim, the employee must establish, by a preponderance of the evidence, that she was entitled to the benefits she claims. Pagel, 695 F.3d at 629 (citing Kohls, 259 F.3d at 804). An employee has a right to reinstatement after taking FMLA leave. 29 U.S.C. § 2614(a); Goelzer, 604 F.3d at 993. However, the right to reinstatement is not absolute or unlimited. 29 U.S.C. § 2614(a)(3)(B) (“Nothing 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.”); Goelzer, 604 F.3d at 993; Cracco, 559 F.3d at 636; Kohls, 259 F.3d at 805. The FMLA allows an employer to terminate an employee on FMLA leave, if the leave" }, { "docid": "10868089", "title": "", "text": "was entitled under the FMLA. See 29 U.S.C. § 2615(a)(1) (“It shall be unlawful for any employer- to interfere with, restrain, or deny the exercise of or the attempt to exercise [] any right provided under this subchapter.”); see also Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.2004) (per curiam) (describing FMLA interference claims as “questioning] ... whether the employer in some manner impeded the employee’s exercise of his or her right”). While this Court to date has not stated the requirements of a prima facie case of interference with FMLA rights in a published opinion, we have, in nonprecedential decisions, accepted the standard regularly used by district courts of this Circuit to analyze FMLA interference claims. See, e.g., Achille v. Chestnut Ridge Transp., Inc., 584 Fed.Appx. 20, 21 (2d Cir.2014) (summary order). We now formally adopt that standard. Accordingly, to prevail on a claim of interference with her FMLA rights, a plaintiff must establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA. The district court granted summary judgment to CIA on Graziadio’s interference claim, concluding that Graziadio could not establish either a) that CIA had actually denied her leave to care for Vincent, or b) that she had fulfilled her obligation to provide an adequate medical certification and that she was therefore entitled to take leave for T.J. We reject each of these conclusions. a. Leave to Care for Vincent The district court first found that Graziadio was not denied any leave with regard to Vincent because she was permitted to take leave on June 7, was allowed to return to work on June 18, and “never actually sought to take additional leave for Vincent” after that time. Graziadio, 2015 WL 1844327, at *6. This, the district court said, rendered it" }, { "docid": "22998827", "title": "", "text": "it attempts to do here, by pointing to an absence of evidence to support the non-moving party’s claim. If Sybra satisfies its burden, Donald must then set forth the specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In evaluating the evidence, we draw all reasonable inferences in favor of Donald. Blackmore, 390 F.3d at 895 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A mere scintilla of evidence in support of Donald’s position will be insufficient for her claim to survive summary judgment. Rather, there must be enough evidence such that the jury could reasonably find for her. Anderson, 477 U.S. at 251,106 S.Ct. 2505. B. FMLA Claims Donald argues that Sybra’s actions give rise to two causes of action under the FMLA. Donald first argues that because she was terminated while on leave, Sybra violated 29 U.S.C. § 2615(a)(1), which makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” any FMLA provision. We have previously held that “[i]f an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLAprotected leave, the employer has denied the employee a benefit to which he is entitled.” Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir.2007). To establish a prima facie case of FMLA interference, Donald must show that (1) she was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of her intention to take leave; and (5) the employer denied the employee FMLA benefits to which she was entitled. Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir.2006) (citing Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir .2005)). Donald next argues that Sybra retaliated against her for taking FMLA leave. The FMLA" }, { "docid": "8242183", "title": "", "text": "due to a serious health condition. 29 U.S.C. § 2612(a)(1)(D); de la Rama, 541 F.3d at 686. The FMLA also entitles an employee on leave to the right to return to the same position and benefits she had just before she took leave. 29 U.S.C. § 2614(a)(l)-(2); Vail v. Raybestos Prods. Co., 533 F.3d 904, 909 (7th Cir.2008). Employers must not interfere with an employee’s attempt to exercise any of her FMLA rights. 29 U.S.C. § 2615(a)(1); de la Rama, 541 F.3d at 686. 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 Haschmann v. Time Warner Entm’t Co., LP, 151 F.3d 591, 604-05 (7th Cir.1998). The burden to prove FMLA interference lies with the plaintiff-employee. Darst v. Interstate Brands Corp., 512 F.3d 903, 908 (7th Cir.2008); Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 804 (7th Cir.2001). To prevail, Simpson must show that: (1) she was eligible for the FMLA’s protections; (2) her employer was covered by the FMLA; (3) she was entitled to 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. Ridings, 537 F.3d at 761. This case concerns the fifth criterion. (Though the Defendants argued on summary judgment that Simpson failed to provide adequate notice of her leave, the district court decided for Simpson on that issue, and the Defendants do not challenge that ruling.) Simpson must prove that the Defendants denied her an FMLA benefit. Simpson was already on leave when she was fired, so the benefit at issue is her right to reinstatement. But an employee’s right to reinstatement is not absolute. Kohls, 259 F.3d at 804. The FMLA allows an employer to “refuse to restore an employee to their former position when restoration would confer a ‘right, benefit, or position of employment’ that the employee would not have been entitled to if the employee had never left the workplace.” Id. at 805 (quoting 29 U.S.C. § 2614(a)(3)(B))." }, { "docid": "16422559", "title": "", "text": "that the McDonnell Douglas burden-shifting analysis should not apply to her case. She relies on King v. Preferred, Technical Group, 166 F.3d 887, 891 (7th Cir.1999), holding that an employee asserting an FMLA “interference” claim need only show that she was entitled to the benefit denied. Plaintiff maintains that she was entitled to FMLA leave for two separate reasons: 1) to care for her husband, 29 U.S.C. § 2612(a)(1)(C); and 2) for her own serious health condition, 29 C.F.R. § 825.114(a)(2)(i), which she allegedly sustained from hitting her hand on the salad bar while walking past it. Bradley argues, further, that she gave proper notice to Mary Rutan in both instances. Finally, she argues that Defendant violated the FMLA in two respects: by using the time off to care for her husband as a negative and contributing factor in its decision to discharge her; and second, by using the FMLA-qualifying absences due to her own serious health condition as a factor in its decision to terminate her. Defendant responds by arguing that to prove her “interference and reinstatement” claim under 29 U.S.C. § 2615(a)(1) and § 2614(a)(1), Plaintiff must prove Mary Rutan’s legitimate, nondiscriminatory reasons for terminating her were insufficient, and she would not have been terminated if she had not taken FMLA leave. It claims that Bradley would have been fired for job abandonment regardless of, and without respect to, her FMLA leave, so Plaintiffs claims fail as a matter of law. Regarding her claim of FMLA leave to care for her husband, Mary Rutan contends that Bradley has not proven that she was entitled to take FMLA leave for her March 7, 2001, absence because she has not provided any objective evidence that on that day her husband had a serious health condition or that she was needed to care for him. Defendant urges, furthermore, that the facts surrounding Bradley’s notice of her intent to take leave to care for her husband are hotly disputed. Next, Defendant disputes Bradley’s entitlement to take leave for what she alleges to have been her own serious health condition, but contends that" }, { "docid": "14998593", "title": "", "text": "certain substantive rights, and it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided.” 29 U.S.C. § 2615(a)(1). Plaintiff alleges that Beverly denied her right to be reinstated. The FMLA provides, with one minor exception not applicable here, that “any eligible employee who takes leave ... shall be entitled, on return from such leave — (A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position.” 29 U.S.C. § 2614(a)(1). Eligible employees are thus entitled to reinstatement. See id.; Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 604 (7th Cir.1998). The substantive right provided in § 2614(a)(1), however, “shall [not] be con strued 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.” § 2614(a)(3)(B); see also Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1017-18 (7th Cir.2000), reh’g en banc denied, 217 F.3d 492, cert. denied, 531 U.S. 1012, 121 S.Ct. 567, 148 L.Ed.2d 486 (2000). The right to reinstatement is therefore not absolute. When an employee alleges that the employer interfered with her substantive rights under the FMLA, we require her to “establish[ ], by a preponderance of the evidence, that [s]he is entitled to the benefit [s]he claims.” Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir.1997). The employer may then present evidence to show that the employee would not have been entitled to her position even if she had not taken leave. See Rice, 209 F.3d at 1018 (quoting O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1354 (11th Cir.2000) (holding that “the employer has an opportunity to demonstrate that it would have discharged the employee even if she had not been on FMLA leave”)). The employee must then overcome the employer’s assertion, as she carries the burden of demonstrating her right to" }, { "docid": "5835267", "title": "", "text": "29 U.S.C. § 2601(a)(4). “Congress enacted substantive provisions entitling eligible employees to temporary leave, to certain continuing benefits, and to reinstatement ... and made it ‘unlawful for any employer to interfere with, restrain, or deny the existence of or the attempt to exercise, any right provided under [subchapter I of the Act].’ ” Sarno v. Douglas-Elliman, 183 F.3d 155, (2d Cir.1999)(quoting 29 U.S.C. § 2615(a)(1)). Employers may not “use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” 29 C.F.R. § 825.220(c). FMLA tries to accomplish these goals “in a manner that accommodates the legitimate interests of employers.” 29 U.S.C. § 2601(b)(3). Any eligible employees affected by such unlawful conduct are entitled to a private right of action for damages or equitable relief. See 29 U.S.C. § 2617(a)(1). In her Complaint, Plaintiff seeks relief under Section 2615 of the FMLA, which reads in relevant part: (a) Interference with Rights (1) Exercise of Rights It shall be 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). FMLA thus creates an entitlement and, at the same time, “provides protection in the event an employee is discriminated against for exercising those rights.” Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st Cir.1998). Thus, if an employer denies an eligible employee the same or similar employment upon returning from FMLA leave, the employer is in violation of the FMLA. See 29 C.F.R. § 825.220(b). Plaintiffs claim here is that by eliminating her job while she was on medical leave, her former employer violated, interfered with or denied her the exercise of her rights under FMLA. (Complaint ¶ 23.) A prima facie case under FMLA requires Plaintiff to show that (1) she is an “eligible employee” as defined in 29 U.S.C. § 2611(2); (2) the Practice is an “employer;” (3) she was entitled to medical leave as a result of a serious health condition; and (4) she gave adequate notice to the Practice of her" }, { "docid": "18494478", "title": "", "text": "construes all facts and draws all reasonable inferences from the record in favor of the nonmoving party. Bell v. Duperrault, 367 F.3d 703, 707 (7th Cir.2004). However, “we are not required to draw every conceivable inference from the record.” Id. Instead, we draw only the reasonable inferences. See McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir.2004). A. Interference Claim The district court’s summary judgment opinion found that Smith’s alteration of Vasconcelles’ health care provider certification form invalidated her application for leave under the FMLA. Thus, Hope School did not interfere with her rights under the act or retaliate against her for asserting them. The FMLA entitles an employee to twelve weeks of leave every twelve-month period if she is afflicted with “a serious health condition” which renders her unable to perform her job. 29 U.S.C. § 2612(a)(1)(D). The FMLA also forbids employers from retaliating against employees who claim benefits under the act. 29 U.S.C. § 2615(a)-(b); see also Burnett v. LFW, Inc., 472 F.3d 471, 477 (7th Cir.2006). To prevail on an FMLA interference claim, an employee need only demonstrate that her employer has denied her leave under the act; she need not show discriminatory intent on the part of the employer. Burnett, 472 F.3d at 477. As for the elements of an interference claim, an employee must demonstrate that: (1) she was eligible for FMLA protection; (2) her employer was covered by the FMLA; (3) she was entitled to FMLA leave; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her benefits to which she was entitled. Id. The district court issued summary judgment because Smith was not entitled to FMLA leave. Hope School argues on appeal that Smith also failed to provide sufficient notice and does not have a qualifying condition. An employee is entitled to FMLA leave if she can demonstrate that she suffers from a “serious health condition” that prevents her from fulfilling the functions of her job. 29 U.S.C. § 2612(a)(1)(D). The FMLA defines an employee with a “serious health condition” as one who has" }, { "docid": "2848079", "title": "", "text": "award great weight would be inappropriate. 2. FMLA Interference and Retaliation “The FMLA affords eligible employees an ‘entitlement’ to twelve weeks of unpaid leave per year.” Di Giovanna v. Beth Israel Med. Ctr., 651 F.Supp.2d 193, 196 (S.D.N.Y.2009) (quoting 29 U.S.C. § 2612(a)(1)). Among other reasons to grant an FMLA leave, one is where “a serious health condition [ ] makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). “The Second Circuit recognizes distinct claims for interference and retaliation under the FMLA.” Benimovich v. Fieldston Operating LLC, 11 CIV. 780 RA, 2013 WL 1189480 (S.D.N.Y. Mar. 22, 2013) (citing Di Giovanna at 198-99 (citing 29 U.S.C. § 2615(a)(1)); 29 C.F.R. § 825.220(c)); see also Potenza v. City of N.Y., 365 F.3d 165 (2d Cir.2004). a. FMLA Interference To establish a prima facie case for interference under the FMLA, a plaintiff must establish: “(1) that she is an eligible employee under the FMLA; (2) that defendants constitute an employer under the FMLA; (3) that she was entitled to leave under the FMLA; (4) that she gave notice to defendants of her intention to take leave; and (5) that defendants denied her benefits to which she was entitled by the FMLA.” Esser v. Rainbow Adver. Sales Corp., 448 F.Supp.2d 574, 580 (S.D.N.Y.2006) (internal quotation marks and citations omitted). “[P]laintiff need only prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her. She can prove this claim, as one might any ordinary statutory claim, by using either direct or circumstantial evidence, or both.... No scheme shifting the burden of production back and forth is required.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161,175-76 (2d Cir.2006) (internal citations and quotations omitted). The first three elements are undisputed; however, the parties disagree as to the fourth, and in particular with the time sequence surrounding Defendants’ decision to suspend Colon. Defendant Wong emailed FIT Human Resources to bring charges against Colon and Totenda on August 22, 2011. It was not until October," }, { "docid": "6280697", "title": "", "text": "§§ 2612(a)(1)(A), (D). At the end of a FMLA leave, the employee has the right to be restored to the position, or its equivalent, that he or she held prior to taking leave. 29 U.S.C. § 2614(a)(1). The right to reinstatement is not, however, absolute, “If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under FMLA.” 29 C.F.R. § 825.214(b); see Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 161-62 (2d Cir.1999). And once the twelve weeks of guaranteed leave are exhausted, if the employee does not return to work— for whatever reason — the employer can replace the employee, as long as the employer is not doing so to punish the employee for exercising her FMLA rights. FMLA expressly creates a private right of action for equitable relief and money damages against any employer for section 2615 violations. 29 U.S.C. § 2617(a)(2); see Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). Plaintiff Reilly alleges two causes of action under the FMLA: (i) interference with FMLA rights and (ii) retaliation for exercising her FMLA rights. (See compl. ¶¶ 83-90.) Neither has merit. i. FMLA Interference Claims To establish an interference claim pursuant to 29 U.S.C. § 2615(a)(1), a plaintiff need only prove that an “employer in some manner impeded the employee’s exercise of his or her right[s]” protected provided by the FMLA. Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 176 (2d Cir.2006) (citing King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir.1999)). To establish a prima facie claim of interference with rights under the FMLA, a plaintiff must establish by a preponderance of the evidence that: “(1) she is an eligible employee under the FMLA; (2) defendants constitute an employer under the FMLA; (3) she was entitled to leave under the FMLA; (4) that she gave notice to defendants of her intention to take leave;" } ]

[ { "docid": "16601286", "title": "", "text": "counsel and notice of intent to file a petition for a writ of habeas corpus prior to the effective date, he did not file his petition until after the effective date. Thus, the AEDPA governs this Court’s review of Carter’s appeal. In an appeal from a denial of habeas relief under the AEDPA, this Court reviews a district court’s legal conclusions de novo and its factual findings for clear error. Hill v. Hofbauer, 337 F.3d 706, 710 (6th Cir.2003). Where the district court does not make independent factual findings, the factual findings are reviewed de novo. Bugh v. Mitchell, 329 F.3d 496, 500 (6th Cir.2003). Under the AEDPA, a federal court may not grant a writ of habeas corpus unless it concludes that the state court’s adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28'U.S.C. § 2254(d). A state court renders an adjudication “contrary to” clearly established federal law when it “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court renders an “unreasonable application” of clearly established federal law when it “identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. Mixed questions of law and fact are reviewed under the “unreasonable application” prong. Biros v. Bagley, 422 F.3d 379, 386 (6th Cir.2005). “Factual findings made by the state court, or by state appellate courts based upon the trial record, are presumed to be correct but may be rebutted by clear and convincing evidence.” Id. III. Ineffective" } ]

[ { "docid": "23260629", "title": "", "text": "appealable order.” State v. Crago, 53 Ohio St.3d 243, 244, 559 N.E.2d 1353 (1990). Under these circumstances federal adjudication was necessary to protect petitioner’s rights under the Double Jeopardy Clause. B. Standard of Review This court reviews the District Court’s grant of habeas corpus relief de novo. See, e.g., West v. Seabold, 73 F.3d 81, 84 (6th Cir.1996), cert. denied, — U.S. -, 116 S.Ct. 2569, 135 L.Ed.2d 1086. Our review of the state trial court’s decisions, however, is governed by the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”). Chapter 153 of the AEDPA, signed into law on April 24, 1996, amended Title 28 of the United States Code and altered the standard of review that a' federal court must employ when deciding whether to grant a writ of habeas corpus. As amended, 28 U.S.C. § 2254(d) (1997) provides as follows: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim'— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Id. Because petitioner filed his application for a writ of habeas corpus on July 26, 1996, after the effective date of AEDPA, the revised § 2254(d) governs our inquiry into whether habeas corpus relief was appropriate in this case. See Lindh v. Murphy, — U.S. -,-, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997) (“We hold that ... the new provisions of chapter 153 generally apply only to cases filed after the Act became effective.”). The Sixth Circuit has not yet explained how courts should implement these new standards of review. The" }, { "docid": "12021959", "title": "", "text": "See Murphy v. Ohio, No. 3:96-cv-7244, 2006 WL 3057964, at *5 (N.D.Ohio Sept.29, 2006). We now turn to consider Murphy’s appeal of the four claims that were certified for our review. II. JURISDICTION The district court had jurisdiction under 28 U.S.C. §§ 1331 and 2254. This Court has jurisdiction under 28 U.S.C. §§ 1291 and 2253. III. STANDARD OF REVIEW This Court reviews de novo a district court’s decision to grant or deny a petition for a writ of habeas corpus. Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir. 2006) (citing Burton v. Renico, 391 F.3d 764, 770 (6th Cir.2004)). Because Murphy filed his habeas petition after the enactment of AEDPA in 1996, AEDPA’s provisions apply to his case. Id. (citing Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003) and Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). Under AEDPA, a federal court may grant a writ of habeas corpus with respect to a “claim that was adjudicated on the merits in state court proceedings” if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A habe-as petition may also be granted if the state court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. § 2254(d)(2). A state-court decision is contrary to clearly established federal law “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams, 529 U.S. at 405, 120 S.Ct. 1495. A state-court decision is an unreasonable application of clearly established federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case,” id. at 407-08,120 S.Ct. 1495," }, { "docid": "13998592", "title": "", "text": "Court law. II. The State’s failure to set aside the petitioner’s pleas or appeal based on the constitutionally ineffective way his attorney handled the same was “contrary to” [United States] Supreme Court law. The respondént has filed an answer in opposition to the petition and contends that the petitioner’s claims lack merit or are procedurally defaulted. II. Although the petitioner’s plea was entered in 1994, the provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132,110 Stat. 1214 (Apr. 24, 1996), govern this case because the petitioner filed this habeas petition after the AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). That Act “cireumscribe[d]” the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims, including claims of ineffective assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). As amended, 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted iñ 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). Therefore, federal courts are bound by a state court’s adjudication of a petitioner’s claims unless the state court’s decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the' state court’s application of federal law “must have" }, { "docid": "15031000", "title": "", "text": "1998. The district court denied Fox’s petition on November 15, 1999, after concluding that the Ohio courts had not considered any extra-statutory aggravating circumstances and that the Ohio Supreme Court’s independent reweighing of the aggravating and mitigating circumstances was therefore not contrary to clearly established federal law. See Fox v. Coyle, No. 1:97 CV 3301, at 56 (N.D.Ohio Nov. 15, 1999). The district court also denied Fox’s request for a certificate of appealability as to all issues. See id. at 61. This court, however, granted a certificate of appealability as to two issues: (i) whether the Ohio courts erred in using a separate alleged crime for which Fox was not tried as an aggravating factor; and (ii) whether the Ohio courts erred in using the violence and planning of the crime as aggravating factors. The present appeal followed. II. A. Standard of Review This court reviews a district court’s legal conclusions in a habeas proceeding de novo and its factual findings for clear error. See Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Defendant filed his habeas petition on May 12, 1998, meaning that this court’s review of the state court’s decision is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997). As amended, 28 U.S.C. § 2254(d) provides as follows: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented" }, { "docid": "18154973", "title": "", "text": "Limbert’s report and recommendation. The district court issued a certificate of appealability as to three issues: “whether [Bugh’s] federal constitutional rights were violated by the introduction of other acts testimony, by the introduction of hearsay testimony, or by the failure of his counsel to move for an independent [psychological] examination of the victim.” On October 12, 2001, this Court denied Bugh’s application for a partial certificate of appealability as to the remaining issues. II. DISCUSSION A. Standard of Review In an appeal of a habeas proceeding, we review the legal conclusions of the district court de novo and its factual findings for clear error. Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002); Miller v. Francis, 269 F.3d 609, 613 (6th Cir.2001). “When the district court relies on a transcript from the petitioner’s state trial and makes no independent determinations of fact, we review the district court’s factual findings de novo, as well.” Withrow, 288 F.3d at 850. B. Habeas Standards and the Antiterrorism and Effective Death Penalty Act Because Bugh’s habeas petition was filed on October 23, 1996, it is subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), which became effective on April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997). Under AEDPA, an application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless 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 upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000) (quoting 28 U.S.C. § 2254(d)). Findings of fact made" }, { "docid": "16404925", "title": "", "text": "death penalty. II. A. Standard of Review We review the district court’s summary denial of Abdus-Samad’s habeas petition de novo. Workman v. Bell, 178 F.3d 759, 765 (6th Cir.1998). Because Abdus-Samad filed his petition after April 24, 1996, it is subject to the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132,110 Stat. 1214 (1996) (codified in various sections of 28 U.S.C.). Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Williams v. Coyle, 167 F.3d 1036, 1040 (6th Cir.1999). Under AEDPA, a writ may not be granted unless the state court’s adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(l)-(2). A state court renders an adjudication “contrary” to federal law when it “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court renders an “unreasonable application” of federal law when it “identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. Factual findings made by the state trial court, or by state appellate courts based upon the trial record, are presumed to be correct but may be rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Bugh v. Mitchell, 329 F.3d 496, 500-01 (6th Cir.2003), cert. denied, 540 U.S. 930, 124 S.Ct. 345, 157 L.Ed.2d 236 (2003). With this standard of review in mind, we now turn to the issues presented on appeal. B. The Tennessee Supreme Court’s Harmless Error Analysis" }, { "docid": "23136469", "title": "", "text": "habeas corpus proceeding now before us on December 2, 1996, raising twenty-eight grounds for relief. The district court denied the petition on August 7, 1998 and thereafter denied a motion to alter or amend the judgment. II. A. Standard of Review This court reviews a district court’s legal conclusions in a habeas proceeding de novo and its factual findings for clear error. See Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Because petitioner filed his habeas petition on December 2, 1996, review of the state court’s decision is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997). As amended, 28 U.S.C. § 2254(d) provides as follows: (d) An application, for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Court explained the effect of this section in these terms: In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) “was contrary to ... clearly" }, { "docid": "17963006", "title": "", "text": "police statement as evidence of Mr. Hill’s guilt. Respondent filed an answer to the petition on December 11, 2000, asserting that the habeas petition should be dismissed for lack of merit. III. Standard of Review The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because Petitioner filed this habeas petition after the AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The AEDPA provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d) (1996). This court must defer to the state court’s legal conclusions unless they are contrary to or unreasonably apply clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). This Court must defer to the state court’s factual conclusions unless they are 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)(2). Additionally, § 2254(e)(1) requires that this Court presume the correctness of state court factual determinations. A ha-beas petitioner may rebut this presumption of correctness only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.1998), cert. denied, 527 U.S. 1040, 119 S.Ct. 2403, 144 L.Ed.2d 802 (1999). In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of habeas corpus review" }, { "docid": "4860241", "title": "", "text": "court’s legal conclusions de novo and its factual findings for clear error.’” Smith v. Berghuis, 543 F.3d 326, 334 (6th Cir.2008) (quoting Miskel v. Karnes, 397 F.3d 446, 451 (6th Cir.2005)). Because Smith filed his habeas petition after April 24, 1996, we review all claims that were adjudicated on the merits by the Ohio state courts under the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254). Under AEDPA, An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — ■ (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). The Supreme Court has explained that subsection 2254(d)(1) contains two prongs, the “contrary to” and the “unreasonable application of’ clauses, each with an independent meaning. Terry Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is contrary to clearly established federal law if either “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” id. at 405, 120 S.Ct. 1495, or “the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent,” id. at 406, 120 S.Ct. 1495. A decision is an unreasonable application of clearly established federal law, on the other hand, if “the state court identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s" }, { "docid": "4860240", "title": "", "text": "all grounds. Smith filed objections to the magistrate judge’s report and recommendation, but the district court ultimately adopted the report and recommendation and denied relief. Smith v. Mitchell, No. C-1-99-832, 2005 WL 1969309 (S.D.Ohio Aug. 15, 2005); Smith v. Mitchell, No. C-1-99-832, 2003 WL 24136073 (S.D.Ohio Sept. 30, 2003). The district court did, however, grant a COA on one claim: whether Ohio’s one-tier system of appellate review for capital cases violates the Due Process Clause of the Fourteenth Amendment. Smith, 2003 WL 24136073, at *26-28. We subsequently expanded the COA to include four additional claims: “(1) whether the prosecutor committed misconduct at trial by arguing that Smith lacked remorse and by improperly questioning Smith on cross-examination; (2) whether trial counsel ineffectively challenged Smith’s confession; (3) whether Smith was sentenced to death for a murder he did not commit; (4) whether the Ohio death penalty statute is unconstitu tional as applied to Smith.” Joint Appendix (“J.A.”) at 612 (Order). II. ANALYSIS A. Standard of Review “ ‘In a habeas corpus proceeding, this Court reviews a district court’s legal conclusions de novo and its factual findings for clear error.’” Smith v. Berghuis, 543 F.3d 326, 334 (6th Cir.2008) (quoting Miskel v. Karnes, 397 F.3d 446, 451 (6th Cir.2005)). Because Smith filed his habeas petition after April 24, 1996, we review all claims that were adjudicated on the merits by the Ohio state courts under the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254). Under AEDPA, An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — ■ (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on" }, { "docid": "22159501", "title": "", "text": "dismissed the habeas petition on the merits. On August 2, 1996, Seymour filed the instant petition, raising forty-six claims of error. In a lengthy opinion, the district court considered all of Seymour’s claims, finding some of them to be proeedurally defaulted and the remainder to be without merit. Seymour timely appealed, and a Certificate of Appealability was granted as to all issues. II. ANALYSIS A. Standard of Review This court reviews the district court’s legal conclusions de novo and its findings of fact for clear error. See Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000). Because Seymour’s habeas petition was filed after the Antiterrorism and Effective Death Penalty Act (AEDPA) became effective on April 24, 1996, the provisions of that act apply to Seymour’s case and prescribe the appropriate standard of review. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harris, 212 F.3d at 942. Under AEDPA, a writ of habeas corpus shall not issue unless the state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), or 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)(2). Noting that AEDPA “places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court,” the Supreme Court illuminated the meaning of § 2254(d)(1) in Williams v. Taylor, — U.S. -, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Id. at -, 120 S.Ct. at 1523. A state-court decision is “contrary to” Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law,” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent” and arrives at a different result. Id. at-, 120 S.Ct. at 1519. A state-court" }, { "docid": "5214310", "title": "", "text": "an opinion and order denying his petition. Davis now appeals that decision. II. ANALYSIS A. Standard of review We review the district court’s legal conclusions in a habeas proceeding de novo and its factual findings under the dear-error standard. Awkal v. Mitchell, 613 F.3d 629, 638 (6th Cir.2010) (en banc). Our review of the Michigan state-court decisions in this case is governed by the following standards set forth in the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d): An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Section 2254(d) creates a “ ‘highly deferential standard for evaluating state-court rulings,’ which demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). A state-court decision is contrary to clearly established federal law only “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Brown v. Palmer, 441 F.3d 347, 350 (6th Cir.2006) (quoting Williams). “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies" }, { "docid": "468721", "title": "", "text": "same claims presented to the Michigan Court of Appeals on direct review. Respondent filed an answer to the habeas application on July 28, 2000, asserting that it should be dismissed based upon procedural default. II. Standard of Review The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because Petitioner filed this habeas petition after the AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The AEDPA provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d) (1996). In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court: Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) “was contrary to ... clearly established Federal law, as determined the by Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court" }, { "docid": "1316520", "title": "", "text": "a writ of habeas corpus in the United States District Court for the Southern District of Ohio, alleging twenty-five constitutional errors. Joint Appendix (“J.A.”) at 9-72 (Goff Pet. for Writ). Without holding an evidentiary hearing, the district court denied each claim. Goff v. Bagley (Goff TV), No. 1:02-ev-307, 2006 WL 3590369 (S.D.Ohio Dec. 1, 2006). Goff filed a motion for a certificate of appealability (“COA”), and the district court certified seventeen claims for appellate review, including whether Goff received ineffective assistance of appellate counsel because his appellate counsel failed to raise the issue of Goffs right to allocution before sentencing. Goff v. Bagley (GoffV), No. 1:02-cv307, 2007 WL 2601096, at *10-11, *15, *21 (S.D.Ohio Sept.10, 2007) We now consider each of Goffs arguments. II. ANALYSIS A. Standard of Review “In a habeas corpus proceeding, this Court reviews a district court’s legal conclusions de novo and its factual findings for clear error.” Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir.) (internal quotation marks omitted), cert. denied, — U.S. -, 130 S.Ct. 742, — L.Ed.2d - (2009). Goff filed his habeas petition in May 2002, after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and, thus, AED-PA governs our review of Goffs claims. Lindh v. Murphy, 521 U.S. 320, 326-27, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA provides that (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d) (emphases added). The Supreme Court has explained that [ujnder the “contrary to” clause, a federal" }, { "docid": "20123415", "title": "", "text": "request by the panel, the parties submitted letter briefs concerning the impact of Ice on the current appeal. II. ANALYSIS A. Standard of Review “We review de novo a district court’s determinations regarding a habeas petitioner’s claim of ineffective assistance of counsel.” Mason v. Mitchell, 543 F.3d 766, 771 (6th Cir.2008). Moreover, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs all habeas petitions filed after AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA provides that An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(l)-(2) (emphasis added). However, AEDPA’s “deferential standard of review ... applies only to a claim that has been adjudicated on the merits in State court proceedings.” Brown v. Smith, 551 F.3d 424, 428 (6th Cir.2008) (internal quotation marks omitted). When AEDPA deference does not apply, we apply the preADEPA standard of review and review questions of law de novo and questions of fact for clear error. Brown, 551 F.3d at 430; see also Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003). In the instant case, it is clear that Evans’s ineffective-assistance-of-appellate-counsel claim was not adjudicated on the merits in the Ohio Supreme Court; rather, the Ohio Supreme Court, after granting discretionary review of the issue, dismissed the case sua sponte, explaining only that discretionary review “ha[d] been improvidently accepted pursuant to the rule relating to ineffective assistance of counsel announced in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d" }, { "docid": "6592680", "title": "", "text": "for a writ of habeas corpus on September 6, 2007, raising four grounds for relief. The state moved to dismiss Akins’s petition on the merits. On August 12, 2008, the district court granted the state’s motion to dismiss and denied the petition. The district court also declined to certify any of the four grounds for appeal. Akins filed a timely notice of appeal. We granted Akins’s application for a certificate of appealability on the two issues now before us and appointed counsel for Akins. II. ANALYSIS A. Standard of Review “We review the district court’s legal conclusions in habeas proceedings de novo and its findings of fact for clear error.” Braxton v. Gansheimer, 561 F.3d 453, 457 (6th Cir.2009). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Akins’s petition because he filed it after the effective date of AEDPA. Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, we may grant a writ with respect to a claim adjudicated on the merits in state-court proceedings only if 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). With respect to § 2254(d)(1), “[a] state court’s decision would be considered ‘contrary to’ established law if it is ‘diametrically different’ from or ‘opposite in character or nature’ to federal law as determined by the Supreme Court.” Pudelski v. Wilson, 576 F.3d 595, 607 (6th Cir.2009) (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)), cert. denied, — U.S. -, 130 S.Ct. 3274, 176 L.Ed.2d 1188 (2010). “[I]f the state court identifies the correct governing legal principle from the Supreme Court’s decisions,” habeas relief is available under the “unreasonable application” clause if the state court “unreasonably applies that principle to the facts of the prisoner’s" }, { "docid": "4389789", "title": "", "text": "Stat. 1214 (1996) (“AEDPA”), is applicable to Wick-line’s petition. Wickline’s Rule 59(e) motion was denied. II. STANDARD OF REVIEW A. AEDPA In a habeas proceeding, this court reviews a district court’s legal conclusions de novo and its factual findings for clear error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Because Wickline filed his habeas petition on May 31, 1996, after the effective date of AEDPA, this court reviews the petition under the standards set forth in AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Williams v. Coyle, 167 F.3d 1036, 1040 (6th Cir.1999) (“[A] federal habeas corpus case is filed or pending for the purposes of Lindh and the AEDPA only when the petition for the writ is filed.”). As amended, 28 U.S.C. § 2254(d) provides as follows: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). “The threshold question under AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.” Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The phrase “clearly established Federal law, as determined by the Supreme Court of the United States” refers to “the holdings, as opposed to the dicta,” of the Supreme Court. Id. at 412, 120 S.Ct. 1495. B. Procedural Default The district court concluded that many of Wickline’s claims are procedurally defaulted for failure to raise them at the earliest opportunity. When a petitioner" }, { "docid": "8391864", "title": "", "text": "that he had remained silent during custodial questioning on the advice of counsel was contrary to or an unreasonable application of Supreme Court precedent as set forth in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and other cases. In a September 25, 2001 decision, the district court conditionally granted the Petition, finding Petitioner’s Batson claim meritorious. The district court concluded that Petitioner’s Doyle claim had been procedurally defaulted and denied his other claims. Respondent now appeals the district court’s decision and concomitant judgment granting Petitioner relief pursuant to 28 U.S.C. § 2254 on the Batson claim. As mentioned above, though Petitioner seeks to inject the Doyle claim into this appeal, he has neither lodged a cross-appeal nor obtained a certificate of appealability from the district court on this issue. The district court stayed the grant of the writ of habeas corpus pending this appeal. II. Standard of Review This Court reviews a district court’s decision to grant habeas corpus relief de novo. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). We review the district court’s findings of fact for clear error. Id.; Carson v. Burke, 178 F.3d 434, 436 (6th Cir.1999). Because the Petition was filed after April 24, 1996, the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), our review of the decisions of the state trial and appellate courts is governed by AEDPA. See Lindh v. Murphy, 521 U.S. 320, 323, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (holding AEDPA applicable to petition filed on or after AEDPA's effective date); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.1999). In AEDPA, Congress provided that: An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim- resulted in a decision that was contrary to, or an involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" }, { "docid": "14752610", "title": "", "text": "of counsel claims. DISCUSSION I. Standard of Review “In a habeas corpus proceeding, this Court reviews a district court’s legal conclusions de novo and its factual findings for clear error.” Miskel v. Karnes, 397 F.3d 446, 451 (6th Cir.2005). However, this Court’s review of a state court determination is limited by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996). AEDPA prohibits a federal court from granting a writ of habeas corpus to a person incarcerated pursuant to a state court judgment with respect to a claim that was adjudicated on the merits in state court unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding. 28 U.S.C. § 2254(d)(l)-(2). Because Petitioner filed his habeas petition after April 24, 1996, AEDPA governs this Court’s review of his petition. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1518, 146 L.Ed.2d 389 (2000). A state court decision is contrary to clearly established federal law if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decision arrives at a conclusion opposite to that reached by [the Supreme Court] on a set of materially indistinguishable facts.” Williams, 120 S.Ct. at 1523. However, as the Supreme Court noted in Panetti v. Quarterman, — U.S. -, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), “AEDPA does not ‘require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied.’ ” Id. at 2858 (quoting Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 656, 166 L.Ed.2d 482, (2006) (KENNEDY, J., concurring in judgment)). A state court determination is an unreasonable application of clearly established federal law if “the state court identifies the" }, { "docid": "8391865", "title": "", "text": "(6th Cir.1999). We review the district court’s findings of fact for clear error. Id.; Carson v. Burke, 178 F.3d 434, 436 (6th Cir.1999). Because the Petition was filed after April 24, 1996, the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), our review of the decisions of the state trial and appellate courts is governed by AEDPA. See Lindh v. Murphy, 521 U.S. 320, 323, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (holding AEDPA applicable to petition filed on or after AEDPA's effective date); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.1999). In AEDPA, Congress provided that: An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim- resulted in a decision that was contrary to, or an involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.... 28 U.S.C. § 2254(d)(1). In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court interpreted the statutory standard for reviewing a petition for writ of habeas corpus. In particular, the Court explained that a state court decision is \"contrary to\" the Supreme Court's precedent \"if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law\" or \"if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the result reached by the Supreme Court].\" Williams, 529 U.S. at 405, 120 S.Ct. 1495; see Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir.2002). A state court decision may be an \"unreasonable application\" of clearly established Supreme Court precedent \"if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case\" or \"if the state court either unreasonably extends" } ]

[ { "docid": "23520005", "title": "", "text": "of his charges should have encompassed his disparate impact allegations. Accordingly, Gomes asserts that he exhausted his administrative remedies before filing suit. Finally, Gomes argues that the district court abused its discretion in denying him leave to file a fourth amended complaint. We will address these arguments in turn. 1. Disparate Treatment Gomes’ third amended complaint alleges that Avco denied him a promotion in 1985 and that Local 1010 refused to pursue a grievance because of Gomes’ Portuguese heritage. Gomes contends that these actions violated Title VII, which forbids unions and employers from discriminating on the ground of national origin. A Title VII plaintiff must file a charge with the EEOC within 180 days of the violation or, where the plaintiff first files with a state or local equal employment agency, within 300 days of the violation. 42 U.S.C. § 2000e-5(e). Gomes filed his complaints in April of 1987, more than 300 days after the 1985 incidents. The district court granted summary judgment to the defendants on the ground that both claims were time barred. On appeal, Gomes suggests that the district court erred on two grounds. First, he contends that the discriminatory incidents identified above were part of continuing violations by Avco and Local 1010. Second, he asserts that Avco’s and Local 1010’s concealment of the discrimination equitably tolled the statute of limitations. We agree with Gomes that the normal statute of limitations rules under Title VII do not apply where “employees are hired or refused employment [or promotion] pursuant to a continuous practice and policy of discrimination.” Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985). Instead, “the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it.” Id.; see also Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir.1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982). Here, however, Gomes has failed to put forth any evidence of a continuous policy" } ]

[ { "docid": "11489256", "title": "", "text": "with the provision’s requirements. Baldwin County Welcome Ctr., 466 U.S. at 152 n. 6, 104 S.Ct. at 1726 n. 6. In the absence of such a requirement, a plaintiff could circumvent Congress’ administrative scheme which was created to facilitate efficient processing of Title VII claims. Moche v. City Univ. of New York, 781 F.Supp. 160, 167 (E.D.N.Y.1992) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017-18, 39 L.Ed.2d 147 (1974)). Consequently, courts within this Circuit have been “reluctant to hear claims that were not originally filed with the EEOC.” See, e.g., Moche, 781 F.Supp. at 167; Dennis v. Pan Am. World Airways, Inc., 746 F.Supp. 288, 290 (E.D.N.Y.1990); Littman v. Firestone Tire & Rubber Co., 709 F.Supp. 461, 464 (S.D.N.Y.1989); McPartland v. American Broadcasting Cos., 623 F.Supp. 1334, 1339 (S.D.N.Y.1985). Without providing reasons that would trigger equitable modification of the statutory requirement to file a claim with the EEOC and obtain a right-to-sue letter from the EEOC, a plaintiff cannot state a Title VII claim in federal court unless the plaintiff has filed a claim with the EEOC. Hogan has not filed a claim with the EEOC, nor received a right-to-sue letter from the EEOC, nor has he alleged that he is entitled to equitable modification of these requirements or presented any facts that could justify such a modification. Accordingly, Hogan’s claim under Title VII is dismissed. CONCLUSION The plaintiffs motion for summary judgment is denied. The defendants’ cross-motions for summary judgment are granted. The clerk is directed to enter judgment dismissing the complaint and closing this case. SO ORDERED. . Hogan actually presented his \"blacklist” and conspiracy theories to the arbitrator during cross-examination. . Federal law should apply even though Hogan's complaint refers to New York CPLR § 7511, the corresponding state law that provides for vacatur of an arbitrator’s award. Even if § 7511 applied, Hogan has not alleged sufficient facts, if assumed to be true, that would justify vacating the arbitration award." }, { "docid": "9624842", "title": "", "text": "(1982)). Equitable tolling is available when the plaintiff fails to file a timely lawsuit due to the plaintiffs “excusable neglect.” Anderson v. Unisys Corp., 47 F.3d 302, 306 (8th Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 299, [133] L.Ed.2d [205] (1995). Winbush v. State of Iowa by Glenwood State Hosp., 66 F.3d 1471, 1477 (8th Cir.1995); Hill v. John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir.1989) (“We hold that the ninety-day limitation period of 42 U.S.C. § 2000e-5(f)(l) is not a jurisdictional prerequisite to federal suit and is, therefore, subject to equitable tolling in appropriate circumstances,” but finding no such circumstances where the plaintiff did not receive the right-to-sue letter from the EEOC, because she had failed to notify the EEOC of her change of address and because the plaintiff learned that the right-to-sue letter had been sent when she still had “ample” time to file her suit, but did nothing). As both the Eighth Circuit Court of Appeals and this court have recognized, “[procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.” Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984) (equitable tolling denied in Title VTI case where plaintiff failed to file suit within ninety days after receipt of right to sue letter). Courts are duty-bound to lay aside their personal sympathies, even when they are not so vague, and to decide the cases that come before them in accordance with the rule of law. Heideman v. PFL, Inc., 904 F.2d 1262, 1268 (8th Cir.1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991); accord Mummelthie v. City of Mason City, Ia., 873 F.Supp. 1293, 1312 (N.D.Iowa 1995) (ADEA case also quoting Baldwin County Welcome Ctr., 466 U.S. at 152, 104 S.Ct. at 1726, and finding that the plaintiffs failure to timely file her age discrimination claims entitled the defendant to summary judgment on those claims under the ADEA), aff'd, 78 F.3d 589 (8th Cir.1996) (table" }, { "docid": "11489255", "title": "", "text": "claim first with the EEOC and the New York State Division of Human Rights before pursuing a claim under Title VII. 42 U.S.C. § 2000e-5(e); Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir.1992); Kirkland v. Bianco, 595 F.Supp. 797, 799 (S.D.N.Y.1984). Plaintiffs must also receive a right-to-sue letter from the EEOC to proceed with a Title VII claim in federal court. 42 U.S.C. § 2000e-5(f)(1); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1983). While filing with the EEOC or the state agency is not a jurisdictional prerequisite, timely filing is a “requirement that, like the statue of limitations, is subject to waiver, estoppel and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Kirkland v. Bianco, 595 F.Supp. at 798-99 & n. 2; Hladki v. Jeffrey’s Consol. Ltd., 652 F.Supp. 388, 392 (E.D.N.Y.1987). Zipes does not stand for the proposition, however, that a plaintiff bringing a Title VII claim need not comply with the provision’s requirements. Baldwin County Welcome Ctr., 466 U.S. at 152 n. 6, 104 S.Ct. at 1726 n. 6. In the absence of such a requirement, a plaintiff could circumvent Congress’ administrative scheme which was created to facilitate efficient processing of Title VII claims. Moche v. City Univ. of New York, 781 F.Supp. 160, 167 (E.D.N.Y.1992) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017-18, 39 L.Ed.2d 147 (1974)). Consequently, courts within this Circuit have been “reluctant to hear claims that were not originally filed with the EEOC.” See, e.g., Moche, 781 F.Supp. at 167; Dennis v. Pan Am. World Airways, Inc., 746 F.Supp. 288, 290 (E.D.N.Y.1990); Littman v. Firestone Tire & Rubber Co., 709 F.Supp. 461, 464 (S.D.N.Y.1989); McPartland v. American Broadcasting Cos., 623 F.Supp. 1334, 1339 (S.D.N.Y.1985). Without providing reasons that would trigger equitable modification of the statutory requirement to file a claim with the EEOC and obtain a right-to-sue letter from the EEOC, a plaintiff cannot state a Title VII claim in federal court unless the plaintiff" }, { "docid": "18326111", "title": "", "text": "POLOZOLA, District Judge. Robert Jackson, Jr. filed suit against Pala, Incorporated (“Pala”) and Tom McCurley (“McCurley”) seeking damages under 42 U.S.C. § 2000e-5, the Fifth Amendment to the United States Constitution, and 42 U.S.C. § 1981. Plaintiff contends that Pala, plaintiff’s employer, and McCurley, his superintendent, terminated him because of his race. Pala and McCurley have moved for summary judgment on Jackson’s Title VII claim on the grounds that Jackson’s suit was filed more than 90 days after receipt of the right-to-sue letter from the Equal Employment Opportunity Commission (“EEOC”). Defendants contend the 90 day time period set forth in § 2000e-5(f)(1) is a jurisdictional prerequisite to filing a Title VII suit. In his opposition to defendants’ motion, Jackson contends that recent jurisprudence by the Supreme Court and the Fifth Circuit Court of Appeals has held that this 90 day period is a statute of limitations which is subject to equitable tolling, waiver, and estoppel. Plaintiff argues that equitable principles should apply in his case. In Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court held that timely filing of an employment discrimination charge with the EEOC is not a jurisdictional prerequisite to a Title VII suit. The court stated in Zipes that the time limit for filing a charge is subject to waiver, estoppel, and equitable tolling. In Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984), the court indicated that equitable principles could be applied to toll the running of the 90 day statutory period to commence a Title VII action, although no equitable basis for tolling the statute was found in that case. Further, in Espinoza v. Missouri Pacific Railroad Co., 754 F.2d 1247 (5th Cir.1985), the Fifth Circuit, citing Baldwin County, held that the 90 day requirement, as a nonjurisdictional statutory precondition to suit, may be subject to tolling and waiver. 754 F.2d at 1248 n. 1. The law is clear that the 90 day period in which to file suit may be extended by equitable principles. Thus, Jackson’s complaint" }, { "docid": "7906621", "title": "", "text": "216(b). Maggio had to refile the Amended Complaint on August 8, 2013 to correct the name of the corporate defendant. In response to the initial Complaint, defendant, PIW, filed its Motion to Dismiss, or in the Alternative, Motion for Summary Judgment based on Maggio’s failure to timely file his claims. II. DISCUSSION A. Motion to Dismiss 1. Counts I and III are Time-Barred and Untimely “Title VII requires that a person complaining of a violation file an administrative charge with the EEOC and allow the agency time to act on the charge.” Park v. Howard University, 71 F.3d 904, 907 (D.C.Cir.1995). Once the EEOC notifies the complainant of its decision to dismiss the charge or its inability to bring a civil action within the requisite 90-day time period, then the complainant can bring a civil action himself. Id.; 42 U.S.C. § 2000e-5(f)(1). The statutory 90-day window for the commencement of an employment discrimination suit following the receipt of a notice-to-sue from the EEOC is strictly construed and is a precondition to filing suit in district court. 42 U.S.C. § 2000e — 5(f)(1); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). “The rule is well settled that proof that a letter properly directed was placed in a post office creates a presumption that it reached its destination in usual time and was actually received by the person to whom it was addressed.” Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 76 L.Ed. 861 (1932) (citing Rosenthal v. Walker, 111 U.S. 185, 193, 4 S.Ct. 382, 28 L.Ed. 395 (1884)). Thus the mailbox rule functions as a presumption of receipt, and only comes into play when there is a material question as to whether the document was actually received. Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 419 (5th Cir.2007). Both sides in this case agree that the EEOC sent a Notice to Sue letter to Maggio at his DC address on November 26, 2012. While there is no evidence that the EEOC sent the letter to Maggio through" }, { "docid": "16884616", "title": "", "text": "action as against Steere must be dismissed because he cannot be held individually liable on such claims; (5) Branker fails to state a claim of intentional infliction of emotional distress. Branker Failed to Exhaust her Administrative Remedies as Required to Bring Suit Under Title VII, the ADEA and the NYCHRL Branker does not contradict Pfizer’s contention that she commenced this action without filing a complaint regarding her Title VII and ADEA claims before the Equal Employment Opportunity Commission (“EEOC”). Under both statutes, such a filing and receipt of a right-to-sue letter from the agency are necessary prerequisites to bringing a legal action. Title VII, 42 U.S.C. §§ 2000e-5(e)(l), (f)(1); ADEA, 29 U.S.C. § 626(d). Failure to do so. is sufficient ground for dismissal of the action: A district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is “reasonably related” to that alleged in the EEOC charge. This exhaustion requirement is an essential element of Title VTI’s statutory scheme. As we noted ... with respect to an analogous EEOC charge requirement in the Age Discrimination in Employment Act, the purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC. Butts v. City of New York Department of Housing Preservation and Development, 990 F.2d 1397, 1401 (1993) (quoting Miller v. International Tel. & Tel, 755 F.2d 20, 26 (2d Cir.1985)) (quotation marks and other citations omitted); Dillman v. Combustion Eng’g. Inc., 784 F.2d 57, 59 (2d Cir.1986) (ADEA claims dismissed on summary judgment for failure to file timely charge with EEOC); Hogan v. 50 Sutton Place South Owners, Inc., 919 F.Supp. 738, 746 (S.D.N.Y. 1996) (dismissing Title VII claim for failure to file complaint with EEOC). Similarly, Section 8-502(e) of the New York City Administrative Code requires that “[p]rior to commencing a civil action ... the plaintiff shall serve a copy of the complaint upon" }, { "docid": "21694036", "title": "", "text": "party to receive a right-to-sue letter from the EEOC before filing suit in federal court. Compare 29 U.S.C. § 626(d)-(e) with 42 U.S.C. § 2000e — 5(e)—(f); see Hodge, 157 F.3d at 168 (“Whereas Title VII plaintiffs must receive a ‘right-to-sue’ letter from the EEOC before filing suit in court ... ADEA plaintiffs need only wait 60 days after filing the EEOC charge.”); Tolliver v. Xerox Corp., 918 F.2d 1052, 1057 (2d Cir.1990). However, in the event that the EEOC issues a right-to-sue letter to an ADEA claimant, the claimant must file her federal suit within 90 days after receipt of the letter. See 29 U.S.C. § 626(e); see also Julian v. City of Houston, 314 F.3d 721, 726 (5th Cir.2002) (acknowledging that Section 626(e) “establishes a ninety-day limitations period for the ADEA complainant who actually receives notice from the EEOC, [but] does not require a complainant to receive such notice before filing suit.”). While the ADEA’s time limit requirements are subject to equitable modification or estoppel, Dillman v. Combustion Eng’g, Inc., 784 F.2d 57, 59 (2d Cir.1986), ADEA time limits “are not to be disregarded by courts out of a vague sympathy for particular litigants,” Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). Three of the named Holowecki plaintiffs filed charges with the EEOC or an authorized state agency (collectively referred to as “EEOC”) before bringing suit in federal court and eleven did not. Plaintiff Kennedy, a resident of Florida, filed an EEOC Intake Questionnaire form and accompanying verified affidavit on December 3, 2001, and an EEOC charge form on May 30, 2002. Kennedy did not receive a right-to-sue letter in conjunction with either of these filings. The verified affidavit, accompanying the Intake Questionnaire form, consisted of over four pages of text and alleged that FedEx had instituted a number of policies and practices that discriminated based on age. It stated, for instance, that “as a result of [the Best Practice Pays] policy and procedure changes,” FedEx had “fired and/or constructively terminated” older couriers and had otherwise discriminated against older" }, { "docid": "15788388", "title": "", "text": "EEOC. The Court agrees. Title 42 U.S.C. § 2000e-(5)(e)(l) specifies the prerequisites that a plaintiff must satisfy before filing a private civil action under Title VII. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2070, 153 L.Ed.2d 106 (2002). According to this provision, “[a] charge ... shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred!.]” 42 U.S.C. § 2000e-(5)(e)(l). Accord, Pijnenburg v. West Ga. Health Sys., Inc., 255 F.3d 1304, 1305 (11th Cir.), reh’g denied, 273 F.3d 1117 (11th Cir.2001) (“It is settled law that in order to obtain judicial consideration of a [Title VII] claim, a plaintiff must first file an administrative charge with the EEOC within 180 days after the alleged unlawful employment practice occurred.”)- This requirement guarantees “the protection of civil rights laws to those who promptly assert their rights” and “also protects employers from the burden of defending claims arising from employment decisions that are long past.” Delaware State Coll. v. Ricks, 449 U.S. 250, 256-57, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). ’ The United States Supreme Court has explained that “strict adherence” to this procedural requirement “is the best guarantee of evenhanded administration of the law.” Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). By choosing this relatively short deadline, “Congress clearly intended to encourage the prompt processing of all charges of employment discrimination.” Id. Indeed, this procedural rule, is not a mere technicality, but an integral part of Congress’ statutory scheme that should not “be disregarded by courts out of a vague sympathy for particular litigants.” Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). Thus, if a plaintiff fails to file an EEOC charge before the 180-day limitations period, the plaintiffs subsequent lawsuit is barred and must be dismissed for failure to exhaust administrative remedies. See, e.g., Brewer v. Alabama, 111 F.Supp.2d 1197, 1204 (M.D.Ala. 2000). Of course, the determination of whether a plaintiff has filed a timely EEOC charge depends on when the alleged" }, { "docid": "19106630", "title": "", "text": "dismissing Dr. Hunt’s second complaint. See Ds’ Mot. for Summ. J., Exh. 8 (Hunt v. Barry, Civil Action No. 94-2669, Order of July 31, 1995 (D.D.C.)) at 3-4. Dr. Hunt simply has not presented sufficient equitable reasons for her failure to file suit on her 1990 right to sue letter until June 23,1997. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam) (“One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence”). B. Title VII Gender Discrimination Claim Dr. Hunt has failed to exhaust her administrative remedies on her gender discrimination claim. See 42 U.S.C. § 2000e-5(f)(1). In her 1996 EEOC claim form, Dr. Hunt specifically checked the boxes for age discrimination and retaliation, but she did not check the box for gender discrimination. See Pi’s Opp., Exh. 7 (EEOC Complaint). Nor is there anything within the EEOC claim form that indicates that Dr. Hunt was alleging gender discrimination: All of her allegations relate quite specifically to age discrimination and retaliation, and her employer therefore could not even arguably have been on notice that she was also complaining of discrimination on the basis of gender. This claim therefore will be dismissed. See Park v. Howard University, 71 F.3d 904, 906-07 (D.C.Cir.1995) (“A court cannot allow liberal interpretation of an administrative charge to permit a litigant to bypass the Title VII administrative process”), cert. denied, 519 U.S. 811, 117 S.Ct. 57, 136 L.Ed.2d 20 (1996). Even if her EEOC complaint could be read to include a gender discrimination claim, Dr. Hunt has failed to present a prima facie case. Dr. Hunt’s gender discrimination claim purports to rely on the same failure to hire her to a dental officer position in 1995. As indicated above, see supra at 34-35, Dr. Hunt has failed to meet her burden of production with respect to the prima facie case. C. Title VII Retaliation Claim The Title VII retaliation claim raises a variation of the procedural problems presented in the age and gender discrimination claims and must also be" }, { "docid": "22470916", "title": "", "text": "charge was pending, McPherson’s union-provided lawyer (defendant Sherry Bok-ser) broached settlement with DOE, which expressed willingness to negotiate on the understanding that, as part of any settlement, McPherson would agree to drop pending legal claims and release future claims. Allegedly on advice of her lawyer, McPherson unilaterally withdrew her state and federal discrimination allegations. However, no settlement materialized. So, on October 24, 2002, McPherson filed a second set of charges with the EEOC and the New York State Department of Human Rights. Both agencies dismissed her charges as time-barred. DISCUSSION The district court granted summary judgment, dismissing McPherson’s discrimination claims as (variously) untimely and meritless. The due process claim was dismissed for failure to demonstrate a protected property interest, for failure to show stigma, and for failure to take advantage of post-deprivation remedies. We review the district court’s grant of summary judgment de novo. Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir.2004). Under Title VII and the ADEA, a plaintiff can sue in federal court only after filing timely charges with the EEOC. See 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(f)(1); Holowecki v. Fed. Express Corp., 440 F.3d 558, 562-63 (2d Cir.2006). A private Title VII plaintiff must also first receive a “right-to-sue” letter from the EEOC. 42 U.S.C. § 2000e — 5(f)(1); Holowecki, 440 F.3d at 563. Title VII A private plaintiff under Title VII must satisfy two conditions before commencing suit in federal court. First, the complainant must file timely administrative charges with the EEOC. If the complainant has instituted state or local proceedings with an agency that is empowered “to grant or seek relief from [a discriminatory employment] practice or to institute criminal proceedings with respect thereto,” the complainant has 300 days from the occurrence of an adverse employment action to file charges with the EEOC. 42 U.S.C. § 2000e-5(e)(l). This timetable governs McPherson’s claim, which was originally filed with a duly empowered New York state agency. Second, the complainant must await dismissal of the administrative charge (or a failure to act): If a charge filed with the Commission ... is dismissed by" }, { "docid": "4608695", "title": "", "text": "complaint filed 97 days after receipt) (quoting Rice v. New England College, 676 F.2d 9, 11 (1st Cir.1982)); see also, Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 h. 1,104 S.Ct. 1723,1724 n. 1, 80 L.Ed.2d 196 (1984) (dismissing pro se complaint for failure to file within 90 days, stating “[p]roeedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts but of a vague sympathy for particular litigants”). Plaintiffs right-to-sue letter is dated January 17, 1992. Plaintiff alleges in the most recent Complaint that he received this letter on January 17, 1992. Third Amended Complaint at II. However, in a prior Complaint, he alleged receipt of the letter on January 23, 1992. Second Amended Complaint at 3. Under Fed.R.Civ.P. 6(e), the presumed date of receipt is January 20, 1992, or three days after January 17. Construing the facts in a light most favorable to plaintiff, viz., that plaintiff received the letter six days after it was sent by certi fied mail, this Court will consider January 23, 1992 as the date of receipt. Plaintiff filed this Title VII action on April 23, 1992, which is 91 days after receipt of the right-to-sue letter. Therefore, because plaintiff fails to allege any equitable considerations and because this Court does not discern any, this Title VII action is'dismissed for failure to file within 90 days of receipt of the right-to-sue letter. Baldwin County Welcome Center v. Broum, 466 U.S. 147, 149, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1984); Johnson v. Al Tech Specialties Steel Corp., 73Í F.2d 143, 146 (2d Cir.1984). Additionally, as a general rule, one not named in the EEOC complaint may not be sued individually in a later Title VII action. § 2000e-5(f)(l); Giuntoli v. Garvin Guybutler Corp., 726 F.Supp. 494, 497 (S.D.N.Y.1989) (citing Alcena v. Raine, 692 F.Supp. 261, 269 (S.D.N.Y.1988)). An exception exists when there is “substantial identity” between the party named in the EEOC charge and the unnamed individual defendants, and the latter had actual notice that their individual conduct was being investigated. Giuntoli, 726" }, { "docid": "22420100", "title": "", "text": "after receiving her right-to-sue letter, thus exceeding the ninety-day statute of limitations by six days. The EEOC mailed notice to Sherlock on February 15, 1995. A presumption exists that an EEOC notice is received three days after its mailing. Baldwin County Welcome Center, 466 U.S. at 148 n. 1 [104 S.Ct. at 1724 n. 1], Accordingly, Sherlock is presumed to have received her right-to-sue letter on February 18, 1995. Because Sherlock commenced this action on May 25, 1995 — ninety-six days later — her Title VII and ADEA causes of action must be dismissed as untimely. District Court Opinion at 4. Having dismissed all of Sherlock’s federal claims, the court also declined to exercise supplemental jurisdiction over her state-law claims. Judgment was entered dismissing the action, and this appeal followed. II. DISCUSSION On appeal, Sherlock contends principally that the court erred in finding her Title VII and ADEA claims time-barred. We conclude that, on the basis of the present record, the court erred in so ruling as a matter of law. A. The Timeliness of the Title VII and ADEA Claims In order to be timely, a claim under Title VII or the ADEA must be filed within 90 days of the claimant’s receipt of a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1); see also Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149-50, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1984) (per curiam); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir.1994). Normally it is assumed that a mailed document is received three days after its mailing. See, e.g., Baldwin County Welcome Center v. Brown, 466 U.S. at 148 n. 1, 104 S.Ct. at 1724 n. 1 (citing Fed.R.Civ.P. 6(e) (“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.”))- And normally it may be assumed, in the absence of challenge, that a notice provided" }, { "docid": "3944532", "title": "", "text": "MEMORANDUM OPINION AND ORDER FITZWATER, District Judge. Defendant moves to dismiss plaintiff’s amended complaint on the ground that it pleads a 42 U.S.C. § 1981 claim that is time-barred. Defendant contends the amendment cannot relate back as permitted by Fed.R.Civ.P. 15(c) because the underlying Title VII suit is also untimely. The court concludes that the Title VII action is not time-barred and denies the motion to dismiss. I. Plaintiff, Kevin McClelland (“McClel-land”), was discharged by defendant, Her-litz, Inc. (“Herlitz”), on April 8, 1986 and thereafter filed a discrimination complaint with the EEOC. On March 28, 1987 the EEOC issued a right-to-sue letter that McClelland received on March 25. On June 10, 1987 McClelland applied with this court for permission to proceed in forma pau-peris by tendering to the clerk of court his proposed complaint and IFP application. On June 25, 1987 the 90-day period within which McClelland was required to file suit, see 42 U.S.C. § 2000e-5(f)(l), expired. On July 26, 1987 the magistrate granted leave to proceed IFP and referred the action to a judge of this court. On July 27 the clerk of court filed plaintiffs pro se complaint. Plaintiff thereafter retained counsel and on November 1, 1988 filed a second amended complaint in which he alleges for the first time a 42 U.S.C. § 1981 claim. The pleading was filed in excess of two years following the occurrence of the alleged discriminatory act. Herlitz contends the amended complaint cannot relate back to the date the complaint was filed because the original Title VII claim is itself time-barred. II. A. To support its contention that the underlying Title VII claim is untimely, Herlitz first relies upon Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam), and Firle v. Mississippi State Dept. of Education, 762 F.2d 487 (5th Cir.1985), and argues that plaintiff did not submit the necessary documents to constitute the filing of “a civil action.” Section 2000e-5(f)(1) requires an aggrieved party to file “a civil action” within 90 days after receiving notice of his right to sue. The" }, { "docid": "13678211", "title": "", "text": "includes additional claims, the new claims allege new causes of actions which can only be entertained by this Court under supplemental jurisdiction. The federal question which confers subject matter jurisdiction upon this Court is the claim filed pursuant to the A.D.A. We must determine first whether plaintiff may properly invoke federal jurisdiction in the present case. Filing Procedures Pursuant to § 12117(a) of the A.D.A., 42 U.S.C. § 12117(a), any person alleging discrimination on the basis of disability is entitled to the remedies, and must abide by the procedures, set forth by § 2000e-5 of Title VII. Therefore, a civil action under the A.D.A. must be filed at the pertinent United States District Court within 90 days of receipt from the Equal Employment Opportunity Commission (EEOC) of the authorization to litigate or “right to sue” letter. See 42 U.S.C. § 2000e-5; 29 C.F.R. § 1601.28(d). Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). Failure to Comply with the 90-day Filing Period Bars the Corresponding Civil Action The 90-day filing period is not a jurisdictional requirement; rather, it resembles a statute of limitations. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Accordingly, failure to file the complaint before the United States District Court within 90 days of receiving the right-to-sue letter precludes the corresponding civil action. The only exception to this bar is when equitable factors merit the tolling the 90-day period. However, the First Circuit has held that courts must “hew to a 'narrow view’ of equitable exceptions to Title VII limitations periods.” Rys v. U.S. Postal Service, 886 F.2d 443, 446 (1st Cir.1989); Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 185 (1st Cir.1989). Moreover, the Supreme Court has limited the equitable tolling of Title VII statute of limitations requirements essentially to situations where (1) the claimant lacks actual or constructive notice of the filing requirement; (2) a court has led a plaintiff to believe that he has done all that its required of him; (3) affirmative misconduct on the" }, { "docid": "15502177", "title": "", "text": "failure to state a claim upon which relief may be granted. B. Exhaustion of Administrative Remedies It is well-settled under Title VII that a plaintiff is required to file a charge of discrimination with, the EEOC within 180 days of the alleged discriminatory activity and prior to filing an action in federal court. See 42 U.S.C. § 2000e-5(e); and NAACP Labor Committee of Front Royal v. Laborers’ International Union of North America, 902 F.Supp. 688, 699 (W.D.Va.1993). “The timely filing requirement serves two primary purposes: to give notice to the charged party and to give the EEOC an opportunity to settle the grievance.” NAACP Labor Committee of Front Royal, 902 F.Supp. at 699, citing Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 876-77 (11th Cir.1986). Technically speaking, “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Nonetheless, a failure to file a timely EEOC charge may result in dismissal. “Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.” Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). Accord Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir.1995); and EEOC v. General Electric Co., 532 F.2d 359, 366 (4th Cir.1976) (“Where ... claims raised under Title VII exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred”). Although the Plaintiff mentioned sexual harassment in Paragraph I of his EEOC charge, the Defendant argues that he failed to exhaust administrative remedies for claims other than discrimination on the basis of “national origin” and “retaliation,” the only two boxes marked on the EEOC form. But see Sloop v. Memorial Mission Hosp., Inc., 198 F.3d 147, 149 (4th Cir.1999)" }, { "docid": "11489254", "title": "", "text": "representation, which has not occurred in this case, may an employee “step into the shoes of the Union.” Lofton v. United States Postal Serv., 592 F.Supp. 36, 37, 39 (S.D.N.Y. 1984). Article V, § 4 of the collective bargaining agreement explicitly provides that “All union claims are brought by the Union alone and no individual shall have the right to compromise or settle any claim without the written permission of the Union.” Thus, Hogan lacks standing to assert a claim to vacate the arbitrator’s award. Accordingly, the defendants’ motion to dismiss Hogan’s request to vacate the arbitrator’s award is granted. VII. Hogan’s final allegation was that he was discharged because of his religion or ethnicity, in violation of Title VII. 42 U.S.C. § 2000e-5 et seq. Hogan does not allege that he filed a claim of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) or the New York State Division of Human Rights, and the defendants allege without contradiction that Hogan did not. In New York, a plaintiff must file an employment discrimination claim first with the EEOC and the New York State Division of Human Rights before pursuing a claim under Title VII. 42 U.S.C. § 2000e-5(e); Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir.1992); Kirkland v. Bianco, 595 F.Supp. 797, 799 (S.D.N.Y.1984). Plaintiffs must also receive a right-to-sue letter from the EEOC to proceed with a Title VII claim in federal court. 42 U.S.C. § 2000e-5(f)(1); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1983). While filing with the EEOC or the state agency is not a jurisdictional prerequisite, timely filing is a “requirement that, like the statue of limitations, is subject to waiver, estoppel and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Kirkland v. Bianco, 595 F.Supp. at 798-99 & n. 2; Hladki v. Jeffrey’s Consol. Ltd., 652 F.Supp. 388, 392 (E.D.N.Y.1987). Zipes does not stand for the proposition, however, that a plaintiff bringing a Title VII claim need not comply" }, { "docid": "4608693", "title": "", "text": "issue of material fact is presented, a court must resolve all ambiguities, and draw all reasonable inferences, against the moving party. Walther v. Bank of New York, 772 F.Supp. 754 (S.D.N.Y.1991). However, once the moving party has met its initial burden of demonstrating the absence of a material issue of fact “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). 1. Title YII Plaintiff brings this action, inter alia, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging that defendants discriminated against him on the basis of religion. Third Amended Complaint at I. Defendants argue, inter alia, that the Title VII claim should be dismissed as time-barred, or, in the alternative, dismissed as to certain defendants for failure to name these defendants as respondents in the EEOC complaint. To be timely, a Title VII claim must be filed in federal court within 90 days of receipt of the “right-to-sue” letter. 42 U.S.C. § 2000e — 5(f)(1); Baldwin County Welcome Center v. Brown, 466 U.S. 147,149-50, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1984). Failure .to comply with this time requirement will result in dismissal of the complaint. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); Sheehan v. Purolater Courier Corp., 676 F.2d 877, 881 (2d Cir.1981), cert, denied, 488 U.S. 891, 109 S.Ct. 226, 102 L.Ed.2d 216 (1988); Brown v. Enzyme Dev. Div. of Biddle Sawyer Corp., 780 F.Supp. 1025, 1026 (S.D.N.Y.1992). Plaintiff had 90 days from receipt of the EEOC right-to-sue letter to file this Title VII action. In a Title VII case brought by a pro se plaintiff, the Second Circuit stated that in the absence of a recognized equitable ' consideration, even one day over this 90-day period would be too late. Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir.1984) (dismissal of pro se" }, { "docid": "15502178", "title": "", "text": "1127, 71 L.Ed.2d 234 (1982). Nonetheless, a failure to file a timely EEOC charge may result in dismissal. “Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.” Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). Accord Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir.1995); and EEOC v. General Electric Co., 532 F.2d 359, 366 (4th Cir.1976) (“Where ... claims raised under Title VII exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred”). Although the Plaintiff mentioned sexual harassment in Paragraph I of his EEOC charge, the Defendant argues that he failed to exhaust administrative remedies for claims other than discrimination on the basis of “national origin” and “retaliation,” the only two boxes marked on the EEOC form. But see Sloop v. Memorial Mission Hosp., Inc., 198 F.3d 147, 149 (4th Cir.1999) (In determining which claims had been exhausted, court considered not only original charging document, but also a letter filed two months later); and Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir.1996) (“discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit”). Thus, if the Complaint were otherwise well pled, the salient issue would be whether allegations in the Complaint are “reasonably related” to the allegations contained in the EEOC charge or would have been “developed by reasonable investigation.” Evans, 80 F.3d at 962-63. However, in this case, the Court need not decide whether the Plaintiff failed to exhaust his administrative remedies as to a particular Title VII claim because, even duly considering Plaintiffs pro se status, he has clearly failed to plead any Title VII claim. C. Discrimination Based on Sex/Sexual Harassment Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.," }, { "docid": "13863118", "title": "", "text": "sent by certified mail to plaintiffs address at 9710 South Yates, Chicago. The post office attempted to deliver the certified letter on three separate occasions, and eventually returned the letter, undelivered, to the EEOC on July 23, 1986. In 1989, plaintiff retained counsel, Armand L. Andry, who requested right-to-sue letters for both of plaintiffs charges on July 10, 1989. These letters were sent on July 27, 1989. Plaintiff then filed the instant action, on September 21, 1989. DISCUSSION It is undisputed that plaintiff filed this case within ninety days of the receipt of the right-to-sue letters requested by her attorney on July 10, 1989. Defendant seeks summary judgment on count I of the complaint, alleging that this count is based upon the right-to-sue letter issued in June of 1986 which dismissed plaintiffs discrimination charge. If the plaintiff had receipt of the letter in June, the ninety day period for the filing of her discrimination claim would have expired in September, 1986, three years before this action was filed. Pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., upon the filing of a charge of discrimination, the EEOC shall serve notice of the charge on the employer and conduct an investigation. 42 U.S.C. § 2000e-5(b). If the EEOC dismisses a charge of discrimination, the commission informs the aggrieved person of the dismissal and a civil action may be brought against the employer within ninety days of such notice. 42 U.S.C. § 2000e—5(f)(1). The ninety day filing requirement is not jurisdictional. St. Louis v. Alverno College, 744 F.2d 1314, 1316, n. 2 (7th Cir.1984). Rather, the filing requirement acts as a statute of limitations, and is subject to the principles of waiver and equitable tolling. Id.; Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984); Jones v. Madison Service Corp., 744 F.2d 1309, 1314 (7th Cir.1984). The Seventh Circuit employs an “actual receipt” standard in determining when the ninety day filing period begins to run. In other words, the claimant must actually receive the EEOC right-to-sue letter" }, { "docid": "15026885", "title": "", "text": "your case which shows that you are entitled to relief.” On April 15, 1991, Ms. Mumphrey filed an application to proceed in forma pauper-is with this court. That application was granted on April 16, 1991, and the clerk’s office filed Ms. Mumphrey’s complaint on that day. The pleading names the James River Paper Company as defendant and asserts federal claims of race and sex discrimination under Title VII and state law claims of breach of implied covenant of fair dealing, wrongful discharge, and outrage. Defendant James River Paper now moves for summary judgment on several grounds. The motion will be granted in part and denied in part. I. Defendant James River Paper first contends that Ms. Mumphrey’s complaints of race and sex discrimination under Title VII, see 42 U.S.C. § 2000e-2(a)(1), are barred because her “civil action” was not “brought” within 90 days of the EEOC’s dismissal of her charge. See 42 U.S.C. § 2000e-5(f)(1). Under controlling precedent, the court has no choice except to agree. In Baldwin County Welcome Center v. Brown, 466 U.S. 147, 150 n. 4, 104 S.Ct. 1723, 1725 n. 4, 80 L.Ed.2d 196 (1984) (per curiam), the Supreme Court considered whether a plaintiff’s filing of a right-to-sue notice from the EEOC could satisfy the 90-day requirement. The Court first commented that because the right-to-sue notice contained “no statement ... of the factual basis for the claim of discrimination,” it could not “qualify as a complaint,” see Fed.R.Civ.P. 8(a)(2). Baldwin County Welcome Center, 466 U.S. at 149, 104 S.Ct. at 1724. The Court then held that nothing in the record would support the equitable tolling of the 90-day limit. Id. at 151, 104 S.Ct. at 1725. This court, then, turns first to the question of whether Ms. Mumphrey’s in forma pauperis application, which was timely filed, could be construed as a “complaint.” See id. at 149, 104 S.Ct. at 1724. Fed.R.Civ.P. 8(a) requires that a complaint contain “a short and plain state ment” of the grounds for jurisdiction, “a short and plain statement of the claim showing that the pleader is entitled to relief,” and “a" } ]

[ { "docid": "23091994", "title": "", "text": "with the defendants as required by law.” Id. Moreover, Nordelli proceeds to hold that a warrant was nonetheless unnecessary because the search was justified as a search incident to an arrest. See id. at 667. In short, we had no opportunity in Nordelli to determine whether § 622 required service before seizure. We conclude that, absent exigent circumstances, if a person is present at the search of her premises, Rule 41(d) requires officers to give her a complete copy of the warrant at the outset of the search. Violations of Rule 41(d) do not usually demand suppression, however. Under Ninth Circuit law, “technical” violations of Rule 41(d) require suppression only if there was a “deliberate disregard of the rule” or if the defendant was prejudiced. See United States v. Negrete-Gonzales, 966 F.2d 1277, 1283 (9th Cir.1992). Suppression is justified here because the violation was deliberate. (We need not thus consider whether the violation was “technical” or “fundamental.”) The agents failed to show Gantt the complete warrant even after she asked to see it. The government has provided no explanation or justification for the agents’ failure. The government tries to argue Attachment A was unavailable because agents were using it to conduct the search, but in its opening brief the government admits the agents had “multiple copies” of the complete warrant on-site. Nothing in the record indicates that none of the copies could be spared to show Gantt or that the agents were unable to make an extra copy of the warrant in the 16 hours between the issuance of the warrant and its execution. The government also claims the failure was not deliberate because “no previous case” has held that the warrant must be served on the subject of the search. We disagree. One of our recent cases held that under the Fourth Amendment, “[i]t is the government’s duty to serve the search warrant on the suspect” in order to “inform the person subject to the search what items the officers executing the warrant can seize.” See United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997) (internal quotation marks" } ]

[ { "docid": "22312594", "title": "", "text": "the marked money from the undercover buy. Officers also seized a hand-gun found tucked behind the cushion of Bynum’s living room couch and a loaded semi-automatic shotgun from the hallway closet. Bynum was charged with being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He filed a written motion to suppress the two firearms discovered during the search of his apartment, solely on the grounds that the officers’ failure to knock and announce prior to entry violated his Fourth Amendment and state and federal statutory rights. On November 4, 2002, after an evidentiary hearing, the district court denied Bynum’s motion, finding that officers had a reasonable suspicion that knocking and announcing would endanger themselves and civilian bystanders based on Bynum’s exhibition of weapons during two of three drug buys. The district court found that exigent circumstances justified noncompliance with the knock and announce requirement. Shortly thereafter, Bynum entered a conditional guilty plea that reserved the right to appeal the district court’s denial of his motion to suppress. II We review de novo the district court’s denial of Bynum’s motion to suppress the incriminating evidence. See United States v. Garcia, 205 F.3d 1182, 1186 (9th Cir.2000). Factual findings underlying the denial of the motion are reviewed for clear error. See United States v. Fernandez-Castillo, 324 F.3d 1114, 1117 (9th Cir.2003). Whether exigent circumstances justified the officers’ no-knock entry is a mixed question of law and fact that we review de novo. See United States v. Hudson, 100 F.3d 1409, 1417 (9th Cir.1996). A Bynum alleges that the manner in which NLVPD officers entered his apartment violated the knock and announce principles required by the Fourth Amendment, 18 U.S.C. § 3109, and Nevada state law, Nev.Rev.Stat. 179.055. We reject this contention and hold that the district court correctly ruled that sufficient exigent circumstances justified the no-knock entry of Bynum’s apartment. 1 The Fourth Amendment and 18 U.S.C. § 3109 both mandate that police officers entering a dwelling pursuant to a search warrant announce their purpose and authority and either wait a reasonable amount of time" }, { "docid": "7876402", "title": "", "text": "no error on the part of the judiciary, the good-faith exception is inapplicable. Stated differently, the good-faith exception is not relevant where the violation lies in the execution of the warrant, not the validity of the warrant. Under such circumstances, suppression will presumably deter future violations and the exclusionary rule serves its purpose. In Gantt’s case, the officers erred in the execution of a warrant, a subject wholly within their province. There is no allegation that the warrant was invalid or that the magistrate committed an error. The good-faith exception is not relevant. VII. Conclusion The agents violated Rule 41(d)’s requirement that a warrant be served upon a person present at the search of her property at the time of execution absent some exigent circumstance. The violation was deliberate and prejudicial, so suppression is required under Rule 41(d) regardless of the dictates of the Fourth Amendment. Because errors in the execution of warrants are solely in the province of agents, the good-faith exception has no applicability. The decision of the district court to suppress the evidence seized at Gantt’s apartment is AFFIRMED. . Because we affirm the district court's suppression order on the basis of Rule 41(d) we do not consider the failure to specify the suspected criminal activity. We do repeat our frequent criticism of this practice. See United States v. McGrew, 122 F.3d 847, 849 n. 2 (9th Cir.1997) (citing United States v. Kow, 58 F.3d 423, 427 (9th Cir.1995) (collecting cases)). . For a detailed history of § 3731, see United States v. Sisson, 399 U.S. 267, 293-98, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970); United States v. Carrillo-Bernal, 58 F.3d 1490, 1494-97 (10th Cir.1995). . See, e.g., United States v. Becker, 929 F.2d 442, 444-445 (9th Cir.1991) (USA, Oregon); United States v. Eccles, 850 F.2d 1357, 1359-60 (9th Cir.1988) (U.S. Department of Justice); United States v. Bailey, 136 F.3d 1160, 1163-64 (7th Cir.1998) (USA, Central District of Illinois); United States v. Salisbury, 158 F.3d 1204, 1206-07 (11th Cir.1998) (USA, Northern District of Alabama); United States v. Carrillo-Bernal, 58 F.3d 1490 (10th Cir.1995) (USA, District of New" }, { "docid": "22270644", "title": "", "text": "and deliberate disregard” of a provision in the Rule. United States v. Martinez-Garcia, 397 F.3d 1205, 1213(9th Cir.) cert. denied, — U.S.-, 126 S.Ct. 241, 163 L.Ed.2d 222 (2005). 1 Williamson does not contend that the violation rises to a “constitutional magnitude.” The error, therefore, is a “mere technical error,” and suppression is only appropriate if Williamson suffered prejudice or if the violation was deliberate. United States v. Negrete-Gonzales, 966 F.2d 1277, 1283(9th Cir.1992) (citing Johnson, 660 F.2d at 753); see also United States v. Ridgway, 300 F.3d 1153, 1157 (9th Cir.2002). 2 Williamson concedes that there was no prejudice here. “Prejudice” means that the “the search would not have occurred or would not have been so abrasive if law enforcement had followed the Rule.” Martinez-Garcia, 397 F.3d at 1213; United States v. Crawford, 657 F.2d 1041, 1047(9th Cir.1981). Williamson does not contend that no search would have occurred or that the search would have been less abrasive had the government followed Rule 41(d). 3 Williamson argues that Agent Nielsen acted with “intentional and deliberate disregard” of Rule 41(d), and suppression is therefore necessary. During the suppression hearing, Agent Nielsen admitted that he “intentionally”—but not “deliberately”—failed to provide a copy of the search warrant to Williamson before beginning the search. Both parties believe that Agent Nielsen’s mistaken understanding of the law cuts in their favor. On the one hand, Williamson argues that Agent Nielsen intended to serve the warrant at the end of the search, meaning that his failure was volitional, and therefore “intentional and deliberate.” On the other hand, the government argues that Agent Nielsen intend ed to satisfy what he mistakenly believed to be the Rule, meaning that the violation was not deliberate, even if his actions were intentional. Recently, in Smith, we concluded that the violation of Rule 41 was neither deliberate nor prejudicial where the agent executing the warrant, much like Agent Nielsen here, testified that “he did not know of an obligation to show the warrant at the outset of the search — [the agent] ‘never’ before had presented a warrant at the time of" }, { "docid": "22270664", "title": "", "text": "the district court factored into its analysis of whether Rule 41(d) had been violated—would be relevant. In this case, however, there is no question that the search would not have been appreciably different had the agents followed Rule 41(d): Here, the agents introduced themselves, displayed their identification and a copy of the search warrant, discussed the purpose and scope of the search, narrowed their search based on Williamson’s feedback, and offered Williamson an opportunity to examine the seized items. This search is clearly distinguishable from the one in Gantt, where the suspect was denied access to the searched area, had her request for a copy of the warrant rebuffed, and had no idea what items were seized. . In Smith, the search warrant was served in 1997, while Gantt was decided in 1999. However, Gantt did not create new law — it merely restated the law. See United States v. Tekle, 329 F.3d 1108, 1112 (9th Cir.2003). Therefore, the fact that the agent in Smith was unaware of Gantt does not resolve whether his actions were in \"intentional and deliberate disregard” of the Rule. . Two other considerations súpport the government's understanding of \"deliberate.” First, linguistically, one cannot \"deliberately disregard” a Rule of which one is unaware, as Williamson suggests. Second, and more fundamentally, if \"deliberate.and intentional disregard” includes innocent mistakes, then any intentional act (in the volitional sense) justifies suppression. If this were the case, the doctrine of technical errors would be hollow — all mistakes would be intentional and deliberate and would require suppression (as long as the underlying action was undertaken volitionally). This would run counter to the concept that suppression is generally not the appropriate remedy for a Rule 41 violation. See, e.g., Calandra, 414 U.S. at 348 n. 6, 94 S.Ct. 613; Gantt, 194 F.3d at 1005. .A finding of probable cause is reviewed de novo, but findings of fact are reviewed for clear error. United States v. Vesikuru, 314 F.3d 1116, 1122 (9th Cir.2002). The appropriate probable cause standard embodies \"a practical, nontechnical conception that deals with the factual and practical considerations of everyday" }, { "docid": "23091961", "title": "", "text": "before the seizure; they only challenged the return of the warrant for failing to state that the warrant had been served. See id. We sensibly resolved the issue by noting that just because “the return on the warrant failed to show that a copy of the warrant ... was left as required by the statute, it does not follow that the papers were not left with the defendants as required by law.” Id. Moreover, Nordelli proceeds to hold that a warrant was nonetheless unnecessary because the search was justified as a search incident to an arrest. See id. at 667. In short, we had no opportunity in Nordelli to determine whether § 622 required service before seizure. We conclude that, absent exigent circumstances, if a person is present at the search of her premises, Rule 41(d) requires officers to give her a complete copy of the warrant at the outset of the search. Violations of Rule 41(d) do not usually demand suppression, however. Under Ninth Circuit law, “technical” violations of Rule 41(d) require suppression only if there was a “deliberate disregard of the rule” or if the defendant was prejudiced. See United States v. Negrete-Gonzales, 966 F.2d 1277, 1283 (9th Cir.1992). Suppression is justified here because the violation was deliberate. (We need not thus consider whether the violation was “technical” or “fundamental.”) The agents failed to show Gantt the complete warrant even after she asked to see it. The government has provided no explanation or justification for the agents’ failure. The government tries to argue Attachment A was unavailable because agents were using it to- conduct the search, but in its opening brief the government admits the agents had “multiple copies” of the complete warrant on-site. Nothing in the record indicates that none of the copies could be spared to show Gantt or that the agents were unable to make an extra copy of the warrant in the 16 hours between the issuance of the warrant and its execution. The government also claims the failure was not deliberate because “no previous case” has held that the warrant must be served" }, { "docid": "7876394", "title": "", "text": "conflict with this purpose. The judicial branch is not required to appoint a United States Attor ney; it is simply empowered to do so. More importantly, the President retains the power to replace the court-appointed United States Attorney with an Attorney appointed by the President and confirmed by the Senate. We now turn to the merits of the appeal. IV. Standard of Review The district court’s decision to suppress is reviewed as a question of law, but the trial court’s factual findings are, of course, reviewed for clear error. See United States v. Kemmish, 120 F.3d 937, 939 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1087, 140 L.Ed.2d 144 (1998). V. The Requirements of Rule 41(d) The government violated F.R.Cr.P. 41(d) by failing to present Gantt with a complete copy of the warrant. Rule 41(d) provides in pertinent part: “[t]he officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken....” The government argues that, under the rule, agents always have the option of serving the warrant on the person or leaving the warrant behind after they have completed the search. We reject this reading of Rule 41(d). As we have frequently explained, one of the major aims of the particularized warrant requirement is to “give notice to the person subject to the search what the officers are entitled to seize.” In the Matter of Seizure of Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1318 (9th Cir.1981) (quoting United States v. Marti, 421 F.2d 1263, 1268 (2d Cir.1970)). Accord United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997); United States v. Van Damme, 48 F.3d at 466 (9th Cir.1995) (since affidavit did not accompany warrant “Van Damme could look at no document specifying what the officers could take.”); United States v. Towne, 997 F.2d 537, 545 (9th Cir.1993); United States v. Hayes, 794 F.2d" }, { "docid": "23091995", "title": "", "text": "has provided no explanation or justification for the agents’ failure. The government tries to argue Attachment A was unavailable because agents were using it to conduct the search, but in its opening brief the government admits the agents had “multiple copies” of the complete warrant on-site. Nothing in the record indicates that none of the copies could be spared to show Gantt or that the agents were unable to make an extra copy of the warrant in the 16 hours between the issuance of the warrant and its execution. The government also claims the failure was not deliberate because “no previous case” has held that the warrant must be served on the subject of the search. We disagree. One of our recent cases held that under the Fourth Amendment, “[i]t is the government’s duty to serve the search warrant on the suspect” in order to “inform the person subject to the search what items the officers executing the warrant can seize.” See United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997) (internal quotation marks omitted). The government might also consider the authorities it cited to us in its briefs. See, e.g., Katz, 389 U.S. at 355 n. 16, 88 S.Ct. 507; Frisby, 79 F.3d at 32 (“failure to furnish him with Attachment A prior to the search” was a violation of Rule 41(d)); Charles, 883 F.2d at 357 (same); Bonner, 808 F.2d at 869 (same). Our Rule 41(d) jurisprudence requires suppression under these circumstances. VI. The “Good-Faith” Exception The government argues that even if a Rule 41(d) violation demanding suppression has occurred, the evidence should not be suppressed under the “good-faith” exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 918, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The good-faith exception is not relevant here. The good-faith exception is applied when a magistrate erroneously issues a warrant but the officers involved are not expected to recognize the mistake. “If the executing officers act in good faith and in reasonable reliance upon a search warrant, evidence which is seized under a facially valid warrant which is" }, { "docid": "7876399", "title": "", "text": "rule “requires that the officer shall give a copy of the warrant and a receipt for the property to the person from whom taken, or in his absence leave it in the place.” Id. at 666 (emphasis added). Nor did showing Gantt the face of the warrant without Attachment A satisfy Rule 41(d). Without Attachment A, the warrant clearly violated the Fourth Amendment’s particularity requirement and for purposes of Rule 41(d) was not a valid warrant. See Van Damme, 48 F.3d at 466; Talk of the Town Bookstore, 644 F.2d at 1319. Not every violation of Rule 41(d) demands suppression, however. Under Ninth Circuit case law “technical” or “non-fundamental” violations of Rule 41(d) require suppression' only if there was a “deliberate disregard of the rule” or if the defendant was prejudiced. See United States v. Negrete-Gonzales, 966 F.2d 1277, 1283 (9th Cir.1992). Because the violation here was both deliberate and prejudicial, we need not decide whether the violation was fundamental. The violation was deliberate: even after Gantt asked to see the warrant, the agents declined to show her the essential part of the warrant. The government has provided no explanation or justification for the agent’s failure. The violation was also prejudicial. In the context of technical Rule 41(d) violations, prej udice means that “the search might not have occurred or would not have been so abrasive if the rule had been followed.” United States v. Johns, 948 F.2d 599, 604 (9th Cir.1991). Had Gantt been provided a copy of the warrant, the search would have been less abrasive. She would not have been in doubt regarding the authority of the agents, and she might also have been able to point out to the agents that many of the items seized were beyond the scope of the warrant. Our Rule 41(d) jurisprudence requires suppression under these circumstances. VI. The “Good-Faith” Exception The government argues that even if a Rule 41(d) violation demanding suppression has occurred, the evidence should not be suppressed under the “good-faith” exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 918, 104 S.Ct. 3405," }, { "docid": "23357604", "title": "", "text": "the “particularity” requirement of the Fourth Amendment because the police did not leave a copy of the warrant with his wife when they executed it. Defendant Zepeda-Medrano was incarcerated at the time of the search. Defendant cites United States v. McGrew, 122 F.3d 847 (9th Cir.1997), in support of his claim. McGrew involved a federal warrant that incorporated by reference a supporting affidavit. The agents gave the defendant a copy of the bare and uninformative warrant during the search, but failed to provide the incorporated affidavit. This court held that the search was illegal because “[i]t is the government’s duty to serve the search warrant on the suspect, and the warrant must contain, either on its face or by attachment, a sufficiently particular description of what is to be seized.” Id. at 850. Whatever the potential application of McGrew to a state warrant, Defendant Zepeda-Medrano lacks standing to assert the claim. As noted, the particularity requirement helps to limit the discretion of the searching officer and provides “the property owner assurance and notice during the search.” Gantt, 194 F.3d at 1001. A warrant that does not describe with particularity “the place to be searched, and the persons or things to be seized” fails to accomplish either of these goals. However, if the warrant itself is particular, then the first interest is protected; the property owner’s remaining interests, that of assurance and notice, are then protected by the Fourth Amendment’s general prohibition against unreasonable searches. Cf. United States v. Becker, 23 F.3d 1537, 1540 (9th Cir.1994) (observing that “the protection offered by the Fourth Amendment and by our law does not exhaust itself once a warrant is obtained”). Because the warrant in this case was facially particular, we are left with the question whether the officers’ execution of the warrant at Defendant Zepeda-Medrano’s home was reasonable. We need not answer that question, however, because Defendant, who was in prison at the time of the search, lacks standing to challenge the warrant’s execution. This court held recently that a defendant who was not present during a warrant’s service and execution lacked standing" }, { "docid": "5916427", "title": "", "text": "ALARCON, Circuit Judge. Darrell Ridgway appeals from the order of the district court denying his motion to suppress evidence seized by United States Drug Enforcement Agency (“DEA”) officers while executing a search warrant at his house. The district court referred the motion to suppress to a magistrate judge. The magistrate judge found the testimony of the Government’s key witness to be incredible and recommended that the defendant’s motion to suppress be granted. The district court rejected the magistrate judge’s credibility determination and denied the motion without conducting a de novo evidentiary hearing. We vacate the order denying Ridgway’s motion to suppress and remand for a de novo evidentia-ry hearing because we conclude that a district court must conduct its own eviden-tiary hearing before rejecting a magistrate judge’s credibility findings made after a hearing on a motion to suppress. I On January 25, 2001, DEA Special Agent Cary Freeman executed a search warrant to search Ridgway’s house for evidence of marijuana production. The police seized 135 marijuana plants and other evidence of marijuana production before arresting Ridgway. The face of the search warrant that Special Agent Freeman served on Ridgway contained no description of the items to be seized. Instead, it stated “[s]ee Attachment ‘A’ made a part hereof.” Attachment A was the second page of the search warrant that listed the “[ijtems to be searched for.” Special Agent Freeman testified at Ridgway’s preliminary hearing, conducted before Magistrate Judge Thomas E. Fenton, that he did not bring Attachment A with him into Ridgway’s home. Ridgway filed a motion to suppress the evidence seized at his home, contending that, without Attachment A, the warrant lacked the particularity required by the Fourth Amendment. District Court Judge H. Russel Holland referred the motion to suppress to Magistrate Judge Harry Bran-son pursuant to the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(B). At the suppression hearing, Special Agent Freeman testified that he brought Attachment A into Ridgway’s house and showed it to him. Special Agent Freeman explained that when he testified at the preliminary hearing that he had not brought Attachment A with him into Ridgway’s" }, { "docid": "22270640", "title": "", "text": "property taken or shall leave the copy and receipt at the place from which the property was taken. Fed.R.Crim.P. 41(d) (2001) (now 41(f)(3)). We construed Rule 41(d) in Gantt, 194 F.3d at 996, in which we recounted how the police had callously executed a search warrant: Upon entering Gantt’s residence, the agents did not present her with a copy of the warrant. Instead, they directed her to sit in the hallway while they conducted a three-hour search. The agents did not show Gantt the warrant under the authority of which they had invaded her privacy until Gantt herself asked to see the search warrant. The agents responded by showing her the face of the warrant but not Attachment A [which listed items to be seized].... After concluding their search, the agents gave Gantt an inventory of items seized and left a copy of the warrant with Attachment A behind in the hotel room. Before Gantt could examine the copy of the warrant left in the hotel room, however, the agents arrested her and took her to an FBI office. Only at the FBI office was Gantt shown the entire warrant. ... We reasoned that “[t]he Supreme Court has repeatedly held that an essential function of the wafrant is to ‘assure[] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.’ ” Id. at 1001(brackets in original) (quoting United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), abrogated on other grounds, California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991)). Further, the warrant “give[s] notice to the person subject to the search what the officers are entitled to seize.” Id. (internal quotation marks omitted). Based on notice and assurance concerns, we held that, “[a]bsent exigent circumstances, Rule 41(d) requires service of the warrant at the outset of the search on persons present at the search of their premises.” Id. at 1000; see also United States v. Smith, 424 F.3d 992, 1006-07 (9th Cir.2005)." }, { "docid": "22270636", "title": "", "text": "leaving, the agents provided Williamson with a copy of the search warrant (with attachments) and a receipt for the items taken. The police also offered to allow Williamson and his parents to inspect the items seized and compare them to those listed on the receipt, but they declined to do so. During the search, agents seized copies of the 19 photographs allegedly transmitted to Croatia, as well as computer equipment, a digital camera, digital editing software, hard drives, CD-ROMs, Zip disks, and a variety of pornographic photographs. The FBI agents discovered thousands of additional child pornographic pictures on the seized digital media. Williamson stipulated that the government could establish that the 19 photographs were of “actual” minors engaged in sexually explicit conduct. Further, Williamson stipulated that FBI agents recovered “thousands of visual depictions of child pornography as defined above [‘visual depictions of actual minors under 18 years of age engaged in sexually explicit conduct,’] and in [18 U.S.C. § 2256.]” C Agent Nielsen testified that when he executed the search warrant, he was unaware of our case law requiring him to provide a copy of the search warrant at the outset of the search. The government concedes failure to do. so. was error. As Agent Nielsen explained: We always provide a copy of the search warrant and receipt when we exit a residence. We always show them a copy as we go in.... In my mind-set, I was definitely going to leave them a copy of the warrant at the end. And it was not — it was not necessary to give them the warrant until we were finished. The district court denied the motion to suppress concluding: Agent Nielsen testified that it was standard protocol to leave a copy of the search warrant at the conclusion of the search, and that is what the agents had intended to do.... I accept the testimony of Agent Nielsen---- I further find that Nielsen’s actions evince no deliberate disregard of [Federal Rule of Criminal Procedure] 41(d). The district court noted that under United States v. Gantt, 194 F.3d 987, 1001 (9th Cir.1999)," }, { "docid": "10089596", "title": "", "text": "of the warrant with attachment to inform them of the scope of the warrant, nor did they leave a copy on the premises.” (Def.’s Omnibus Mot. at 16.) Under Rule 41(f), the “officer executing the warrant must ... give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken, or ... leave a copy of the warrant and receipt at the place where the officer took the property.” Fed.R.Crim.P. 41(f)(3). In support, Jones cites United States v. Gantt, 194 F.3d 987 (9th Cir.1999), for the proposition that all evidence seized during a search conducted in violation of Rule 41(f) should be suppressed. The D.C. Circuit has not resolved the question of whether a violation of Rule 41 merits the suppression of the disputed evidence. See United States v. Weaks, 388 F.3d 913, 915 (D.C.Cir.2004) (referring to question as “undecided”). The Ninth Circuit in Gantt held, however, that “[violations of [Rule 41(f)] do not usually demand suppression.” 194 F.3d at 1005. Rather, “only if there was a deliberate disregard of the rule or if the defendant was prejudiced,” is suppression necessary. Id. (internal quotation marks omitted). Jones’ claim is belied, however, by the unrebutted fact that the returned copy of the warrant notes that a “copy of warrant and receipt for items” was left with Deniece Jones, defendant’s wife. (Def.’s Omnibus Mot. Ex. 2 at 53.) Den-iece Jones’ signature is affixed to each page of a five-page receipt for goods taken during the search. (Id. at 54-58.) Therefore, at the very least, Jones was provided with a copy of the warrant and a receipt at the conclusion of the search. Third, Jones asserts that the search of the Jeep Cherokee parked in the attached garage at the Moore Street residence was illegal because he signed the consent form authorizing the search involuntarily. Jones alleges that he “felt [he had] no choice but to sign the paper” because he was “guarded by several heavily armed agents after having been rudely awakened.” (Def.’s Omnibus Mot. at 15.) Jones’" }, { "docid": "10071078", "title": "", "text": "well. The Ramirezes appeal. II A. Was there a Fourth Amendment violation? To satisfy the Fourth Amendment, a search warrant must describe with particularity the place to be searched and the items to be seized. U.S. Const, amend. IV; United States v. Sayakhom, 186 F.3d 928, 934. (9th Cir.1999). The particularity requirement protects the individual from a “general, exploratory rummaging in [his] belongings.” United States v. Lacy, 119 F.3d 742, 746 n. 7 (9th Cir.1997) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). It does so both by “limit[ing] the officer’s discretion” and by “inform[ing] the person subject to the search what items the officers executing the warrant can seize.” United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997) (emphasis removed). We addressed the particularity requirement in McGrew, where federal agents searched the home of a suspected drug trafficker. The warrant itself did not specify the evidence sought. Rather, in the space provided for that information, it referred to the “attached affidavit which is incorporated herein.” Id. at 848. However, agents never served McGrew with a copy of the affidavit, either during or after the search. Id. at 849. According to the “well settled law of this circuit,” a warrant “may be construed with reference to the affidavit ... if (1) the affidavit accompanies the warrant, and (2) the warrant uses suitable words of reference which incorporate the affidavit.” Id. (quoting United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir.1982) (internal quotation marks omitted)). When officers fail to attach the affidavit to a general warrant, the search is rendered illegal because the warrant neither limits their discretion nor gives the homeowner the required information. Id. at 850. Appellees concede that the warrant here was facially defective because it provided no description of the evidence sought. It also didn’t refer to or incorporate the application or affidavit. Groh attached no documents to the warrant when he served it on Mrs. Ramirez. Nonetheless, appellees argue that McGrew does not control and that the search was lawful because Groh’s words remedied the defect." }, { "docid": "23357603", "title": "", "text": "Fourth Amendment requires that warrants describe with particularity “the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. The description must enable “the person conducting the search reasonably to identify the things authorized to be seized.” United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986). The particularity requirement “is aimed at protecting against general searches and insures that nothing is left to the discretion of the executing officer.” United States v. Robertson, 833 F.2d 777, 783 n. 4 (9th Cir.1987). Moreover, a warrant that describes with particularity what is to be searched and seized gives assurance and “notice to the person subject to the search what the officers are entitled to seize.” United States v. Gantt, 194 F.3d 987, 1001 (9th Cir.1999). In the present case, the warrant was, on its face, sufficiently particular in describing the places to be searched and the items to be seized. Defendant does not argue that the warrant, on its face, was too general. Instead, he argues that the warrant violated the “particularity” requirement of the Fourth Amendment because the police did not leave a copy of the warrant with his wife when they executed it. Defendant Zepeda-Medrano was incarcerated at the time of the search. Defendant cites United States v. McGrew, 122 F.3d 847 (9th Cir.1997), in support of his claim. McGrew involved a federal warrant that incorporated by reference a supporting affidavit. The agents gave the defendant a copy of the bare and uninformative warrant during the search, but failed to provide the incorporated affidavit. This court held that the search was illegal because “[i]t is the government’s duty to serve the search warrant on the suspect, and the warrant must contain, either on its face or by attachment, a sufficiently particular description of what is to be seized.” Id. at 850. Whatever the potential application of McGrew to a state warrant, Defendant Zepeda-Medrano lacks standing to assert the claim. As noted, the particularity requirement helps to limit the discretion of the searching officer and provides “the property owner assurance and notice during the" }, { "docid": "23091963", "title": "", "text": "on the subject of the search. We disagree. One of our recent cases held that under the Fourth Amendment, “[i]t is the government’s duty to serve the search warrant on the suspect” in order to “inform the person subject to the search what items the officers executing the warrant can seize.” See United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997) (internal quotation marks omitted). The government might also consider the authorities it cited to us in its briefs. See, e.g., Katz, 389 U.S. at 355 n. 16, 88 S.Ct. 507; Frisby, 79 F.3d at 32 (“failure to furnish him with Attachment A prior to the search” was a violation of Rule 41(d)); Charles, 883 F.2d at 357 (same); Bonner, 808 F.2d at 869 (same). Our Rule 41(d) jurisprudence requires suppression under these circumstances. 3. At slip op. 5798, 179 F.3d at 791, in the second sentence of the first paragraph of Part VII, change “deliberate and prejudicial” to “deliberate”. With the opinion thus amended, the panel has voted unanimously to deny the petition for rehearing. Judge Schroeder has voted to deny the petition for rehearing en banc, and Judges Lay and Goodwin recommended denial. The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for rehearing is DENIED and the petition for rehearing en banc is DENIED. OPINION GOODWIN, Circuit Judge: In this interlocutory appeal from a suppression order, the government argues that F.R.Cr.P. 41(d) does not require agents to serve a copy of a search warrant on a person present at the search of her property. Instead, the government contends that Rule 41(d) is satisfied if a copy of the warrant is left behind at the scene after the search is completed, even if the person is first arrested and thus has no opportunity to examine the warrant left behind. We reject the government’s interpretation of Rule 41(d) and affirm the district court’s suppression order. Before we reach the merits of the" }, { "docid": "23091962", "title": "", "text": "if there was a “deliberate disregard of the rule” or if the defendant was prejudiced. See United States v. Negrete-Gonzales, 966 F.2d 1277, 1283 (9th Cir.1992). Suppression is justified here because the violation was deliberate. (We need not thus consider whether the violation was “technical” or “fundamental.”) The agents failed to show Gantt the complete warrant even after she asked to see it. The government has provided no explanation or justification for the agents’ failure. The government tries to argue Attachment A was unavailable because agents were using it to- conduct the search, but in its opening brief the government admits the agents had “multiple copies” of the complete warrant on-site. Nothing in the record indicates that none of the copies could be spared to show Gantt or that the agents were unable to make an extra copy of the warrant in the 16 hours between the issuance of the warrant and its execution. The government also claims the failure was not deliberate because “no previous case” has held that the warrant must be served on the subject of the search. We disagree. One of our recent cases held that under the Fourth Amendment, “[i]t is the government’s duty to serve the search warrant on the suspect” in order to “inform the person subject to the search what items the officers executing the warrant can seize.” See United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997) (internal quotation marks omitted). The government might also consider the authorities it cited to us in its briefs. See, e.g., Katz, 389 U.S. at 355 n. 16, 88 S.Ct. 507; Frisby, 79 F.3d at 32 (“failure to furnish him with Attachment A prior to the search” was a violation of Rule 41(d)); Charles, 883 F.2d at 357 (same); Bonner, 808 F.2d at 869 (same). Our Rule 41(d) jurisprudence requires suppression under these circumstances. 3. At slip op. 5798, 179 F.3d at 791, in the second sentence of the first paragraph of Part VII, change “deliberate and prejudicial” to “deliberate”. With the opinion thus amended, the panel has voted unanimously to deny the petition" }, { "docid": "23091958", "title": "", "text": "opinion. In defending the legality under the federal rules of warrants authorizing electronic eavesdropping, the Supreme Court stated “Rule 41(d) does require federal officers to serve upon the person searched a copy of the warrant and a receipt describing the material obtained, but it does not invariably require that this be done before the search takes place,” Katz, 389 U.S. at 355 n. 16, 88 S.Ct. 507 (emphasis added). The government inexplicably proposes that this language means agents never need serve the warrant before the search. But if Rule 41(d) does not “invariably” require service before the search, then Rule 41(d) must usually require service before the search. Moreover, the Court was defending eavesdropping warrants against the charge that they did not provide prior notice to the subject of the search unlike “[a] conventional warrant [which] ordinarily serves to notify the suspect of an intended search.” Id. (emphasis added); see also id. n. 22. Katz, the last word from the Supreme Court on the subject, supports our conclusion that, absent exigent circumstances, Rule 41(d) requires service of the warrant at the outset of the search. The government next contends our holding is contrary to the “prevailing view” in our sister circuits. We have examined the numerous cases cited by the government and find no such prevailing view. In fact, we find firm support for our interpretation of Rule 41(d). Our sister circuits have also recognized that the failure to serve the warrant on the subject of the search prior to the search is a violation of Rule 41(d) but have declined to mandate suppression. See, e.g., Frisby v. U.S., 79 F.3d 29, 32 (6th Cir.1996) (“failure to furnish him with Attachment A prior to the search” was a violation of Rule 41(d) but not prejudicial enough to require suppression); United States v. Charles, 883 F.2d 355, 357 (5th Cir.1989) (same); United States v. Bonner, 808 F.2d 864, 869 (1st Cir.1986) (same). United States v. Stefonek, 179 F.3d 1030 (7th Cir.1999), cited by the government, is not on point be cause Stefonek argued that his premises should not have heen searched" }, { "docid": "23091998", "title": "", "text": "in the execution of a warrant, a subject wholly within their province. There is no allegation that the warrant was invalid or that the magistrate committed an error. The good-faith exception is not relevant. VII. Conclusion The agents violated Rule 41(d)’s requirement that a warrant be served upon a person present at the search of her property at the time of execution absent some exigent circumstance. The violation was deliberate, so suppression is required under Rule 41(d) regardless of the dictates of the Fourth Amendment. Because errors in the execution of warrants are solely in the province of law enforcement agents, the good-faith exception has no applicability. The decision of the district court to suppress the evidence seized at Gantt’s apartment is AFFIRMED. . Showing Gantt the face of the warrant without Attachment A certainly did not satisfy Rule 41(d). Without Attachment A, the warrant violated the Fourth Amendment’s particularity requirement and for purposes of Rule 41(d) was not a valid warrant. See United States v. Van Damme, 48 F.3d 461, 466 (9th Cir.1995); Matter of Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1319 (9th Cir.1981). . Other major functions of the search warrant include interposing \"a magistrate between the citizen and the police .... so that an objective mind might weigh the need to invade that privacy in order to enforce the law,\" McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 93 L.Ed. 153 (1948), and \"limit[ing] the scope of the search, specifying what the police may search.\" Steagald v. United States, 451 U.S. 204, 226, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (Rehnquist, J., dissenting). . Exigent circumstances would, of course, include searches based on the ignorance of the subject of the search. See, e.g., Katz, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (electronic surveillance does not require notice to subject of search); United States v. Johns, 948 F.2d 599 (9th Cir.1991) (“sneak and peek” search requires ignorance of subject of search). . The government also cites cases holding Rule 41(d) does not always require the warrant to" }, { "docid": "5387365", "title": "", "text": "attachment describing the property to be searched when law enforcement officers executed the search warrant. When reviewing a district court’s denial of a motion to suppress, we examine for clear error the district court’s factual findings, and we review de novo the ultimate question whether the Fourth Amendment has been violated. United States v. Rodriguez-Hernandez, 353 F.3d 632, 635 (8th Cir.2008). “We must affirm an order denying a motion to suppress unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made.” Id. Spencer argues the failure to provide him with a copy of Attachment D at the outset of the search violated Federal Rule of Criminal Procedure 41. Spencer’s argument fails. Rule 41 applies exclusively to federal searches. United States v. Schroeder, 129 F.3d 439, 443 (8th Cir. 1997) (citing United States v. Moore, 956 F.2d 843, 847 (8th Cir.1992)). Here, the state court issued the search warrant for Spencer’s property, and state law enforcement officers executed the search warrant. Spencer produced no evidence federal law enforcement personnel executed the search warrant, initiated or participated in the search, or had any intention of using the state investigation to charge Spencer in federal court. Consequently, Rule 41 is inapplicable. See id. Even if the search were federal in character, noncompliance with Rule 41 “does not automatically require exclusion of evidence in a federal prosecution.” United States v. Schoenheit, 856 F.2d 74, 76 (8th Cir.1988) (citing United States v. Brown, 584 F.2d 252, 258 (8th Cir.1978)). Instead, exclusion is required only if a defendant is prejudiced or if reckless disregard of proper procedure is evident. United States v. Bieri, 21 F.3d 811, 816 (8th Cir.1994). Spencer did not suffer any prejudice from not receiving Attachment D, and Spencer did not make a showing the officers acted with reckless. disregard. We affirm the district court on the suppression issue. B. Sufficiency of the Evidence Spencer next argues' the government presented insufficient evidence to" } ]

[ { "docid": "22661970", "title": "", "text": "an erroneous evaluation of the need to revoke parole, given the breach of parole conditions. See People ex rel. Menechino v. Warden, 27 N. Y. 2d 376, 379, and n. 2, 267 N. E. 2d 238, 239, and n. 2 (1971) (parole board had less than full picture of facts). And society has a further interest in treating the parolee with basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness. Given these factors, most States have recognized that there is no interest on the part of the State in revoking parole without any procedural guarantees at all. What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior. Ill We now turn to the nature of the process that is due, bearing in mind that the interest of both State and parolee will be furthered by an effective but informal hearing. In analyzing what is due, we see two important stages in the typical process of parole revocation. (a) Arrest of Parolee and Preliminary Hearing. The first stage occurs when the parolee is arrested and detained, usually at the direction of his parole officer. The second occurs when parole is formally revoked. There is typically a substantial time lag between the arrest and the eventual determination by the parole board whether parole should be revoked. Additionally, it may be that the parolee is arrested at a place distant from the state institution, to which he may be returned before the final decision is made concerning revocation. Given these factors, due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available. Cf. Hyser v. Reed, 115 U. S. App. D. C. 254, 318 F. 2d 225 (1963). Such an inquiry should be seen as" } ]

[ { "docid": "15124331", "title": "", "text": "him. Although the Court distinguished the question whether the parolee violated a condition from the question whether that violation warranted revocation, it viewed the revocation hearing as properly addressing both inquiries. See Morrissey, 408 U.S. at 484, 92 S.Ct. at 2602 (“What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.”); cf. Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636 (1985) (noting that, where there is discretion to continue probation or parole, “the parolee or probationer is entitled to an opportunity to show not only that he did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition”). In identifying the minimum due process requirements for a revocation hearing, the Court did not suggest that we adhere to those requirements at the violation stage and simply discard them at the mitigation stage. From this, it is clear that Morris-sey (and Holland) intended that a parolee, even one who has admitted the violation of a parole condition, has a qualified right to confront and cross-examine witnesses and present evidence in support of mitigation. We caution, however, that this interpretation does not transform the revocation hearing into a full-scale trial. See Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. A hearing body may still determine that good cause exists to disallow the confrontation of a particular witness and may bar the presentation of testimonial and documentary evidence not relevant or material to the violation or mitigative factors. gests that there was no invasion of Williams’s right to present evidence on his own behalf because he failed to subpoena the parole officer. As an initial matter, we find the respondent’s reliance on the lack In this case, the respondent sug- of a subpoena to be disingenuous. Williams made clear in his pre-hearing letter that he wanted his parole officer to be present for" }, { "docid": "22469735", "title": "", "text": "the court considered Mr. Neal’s “current age, his health and the need to have a punitive and deterrent effect.” Id. Mr. Neal timely appealed. II ANALYSIS A. Discovery Mr. Neal first claims that his Fifth Amendment right to due process of law was violated when the district court denied his request for discovery. We review Mr. Neal’s constitutional claim de novo. See, e.g., United States v. Ramos, 401 F.3d 111, 115 (2d Cir.2005) (reviewing de novo an alleged due process violation in context of supervised release revocation). Following the Supreme Court’s decisions, we have held that supervised release revocation hearings are not criminal prosecutions. See United States v. Kelley, 446 F.3d 688, 689-91 (7th Cir.2006) (citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Consequently, the full panoply of rights that the Constitution guarantees to criminal defendants does not extend to individuals who are the subject of revocation proceedings. Instead, in Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court set forth the more streamlined process that is due to an individual already convicted of an underlying crime, but in danger of losing his conditional liberty. The Court stated that due process requires that a parolee be given: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact-finder as to the evidence relied on and reasons for revoking parole. Id. at 489, 92 S.Ct. 2593. Although Mor-rissey involved a parole revocation, the Supreme Court extended these protections to probation revocation proceedings in Gagnon v. Searpelli 411 U.S. 778, 93" }, { "docid": "935031", "title": "", "text": "the fifth amendment. There is a difference of opinion among the lower federal courts as to whether due process applies to parole decision-making, and if it does, the nature of the process that is due. In Morrissey v. Brewer, 1972, 408 U. S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 the Supreme Court held that although parole revocation does not call for the full panoply of rights due a defendant in a criminal proceeding, revocation of a parolee’s liberty falls within the protection of the due process clause. Thus, the court held that a revocation hearing must be conducted reasonably soon after the parolee’s arrest and that minimum due process requirements are: (1) written notice of the claimed violations of parole; (2) disclosure to the parolee of the evidence against him; (3) opportunity to be ' heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses, unless the hearing officer specifically finds good cause for not allowing confrontations; (5) a neutral and detached hearing body such as the traditional parole board; and (6) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole. Morrissey, however, does not dictate that prisoners looking forward to release on parole be equated with paroles facing loss of their conditional freedom. While a necessary precondition to revocation of parole and reincarceration is a factual finding that a parolee has violated a condition of his parole, the parole release decision is based on a complex of tangible and intangible, of objective and subjective, factors having to do with psychiatry, criminology, psychology, penology and human relations. In Morrissey, the Court, in footnote 8 of its opinion, 408 U.S. 482, 92 S.Ct. 2593, 33 L.Ed.2d 484, intimated that the due process requirements established therein for parole revocation proceedings need not be extended to those still incarcerated seeking parole. The Supreme Court, quoting approvingly from United States ex rel. Bey v. Connecticut State Board of Parole, 2 Cir. 1971, 443 F.2d 1079, 1086, vacated as moot, 1971, 404 U.S. 879, 92 S.Ct." }, { "docid": "7597822", "title": "", "text": "parole system. The Illinois legislature was addressing the specific situation in which there is probable cause to believe that a parolee has committed a new crime. Illinois has decided that there is serious doubt whether these individuals can function in society without committing antisocial acts, and that therefore they must be detained pending their final revocation hearings. Illinois’ decision does not violate the Excessive Bail Clause. V. The district court’s second ground for concluding that the Constitution requires Illinois to provide the class members with an individualized bail hearing was the Due Process Clause of the Fourteenth Amendment. We reverse. A. An individual’s conditional liberty associated with his or her status as a parolee is a liberty interest protected by the Fourteenth Amendment. In Morrissey, the Supreme Court stated: the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a “grievous loss” on the parolee and often on others. It is hardly useful any longer to try and deal with this problem in terms of whether the parolee’s liberty is a “right” or a “privilege.” By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. 480 U.S. at 482, 92 S.Ct. at 2601. Consequently, an individual’s parole may not be revoked without due process of law. The district court determined that the process which is due includes a bail hearing. We disagree. In Morrissey, the Court discussed the due process requirements which attach to the revocation of parole. A preliminary parole revocation hearing must be “conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.” Id. at 485, 92 S.Ct. at 2602. The Court also stated: [T]he parolee should be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. The notice should state what parole violations have been alleged. At the hearing the" }, { "docid": "11322922", "title": "", "text": "mandatory release.” After the hearing, Carson renewed his petition for a writ of habeas corpus. On November 14, 1975, the United States District Court, Southern District of New York, Marvin E. Frankel, Judge, granted the writ. See 403 F.Supp. 747. Holding that Carson had been denied due process, Judge Frankel based his decision on (1) the three-month delay between the date of Carson’s arrest in Biloxi and his hearing date, which was deemed excessive; (2) the hearing examiner’s reliance upon undisclosed information; (3) the rambling disorderliness of the hearing; and (4) the inadequacy of the statement of reasons supporting revocation. We affirm the grant of the writ of habeas corpus. However, in doing so we find it unnecessary to pass on grounds (1) and (3) asserted by Judge Frankel. Nor does our holding imply that we necessarily share his characterizations of the Parole Board’s conduct in this case. DISCUSSION As with most procedural due process questions, a tension permeates parole revocation procedure. On the one hand, there is the disinclination to convert the revocation hearing into a full-blown adversarial process, equipped with the totality of formal rights and procedures associated with a criminal trial. On the other, there is the necessity of channelling the Parole Board’s discretion in a responsible fashion, so that the decision, which is of prime importance to the parolee’s life and liberty, is not tainted by unfairness or carelessness. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court attempted to strike a balance between these divergent interests, the one institutional and the other individual. Beginning “with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations,” id. at 480, 92 S.Ct. at 2600, the Court nonetheless proceeded to recognize that revocation of parole inflicts a “ ‘grievous loss’ on the parolee” and therefore the proceeding “calls for some orderly process . . . ,” id. at 482, 92 S.Ct. 2593. This principle has since" }, { "docid": "15124328", "title": "", "text": "were. Yet this second step, deciding what to do about the violation once it is identified, is not purely factual but is also predictive and discretionary. Id. at 479-80, 92 S.Ct. at 2599-600. Unless there is a determination that the parolee in fact violated a parole condition, the discretionary aspect of the revocation inquiry need not be reached. See id. at 483-84, 92 S.Ct. at 2601. Although the Court noted that a parolee is not due the full panoply of rights that apply in a criminal prosecution, it identified the minimum requirements of due process in this context. A revocation procedure must provide (1) written notice of the violations charged, (2) disclosure to the parolee of the evidence against him, (3) the opportunity to be heard in person and to present witnesses and documentary evidence, (4) the right to confront and cross-examine adverse witnesses unless the hearing officer finds good cause for disallowing such confrontation, (5) a neutral and detached hearing body, and (6) a written statement by the factfinders identifying the evidence and reasons supporting the revocation decision. See id. at 489, 92 S.Ct. at 2604. At issue here is whether Williams, having admitted his violation of a parole condition, was nonetheless entitled to have his parole officer present at the hearing for direct or cross-examination. A parolee who requests a revocation hearing and contests the charged violation has a qualified right to confront and cross-examine adverse witnesses. See, e.g., id.; McBride v. Johnson, 118 F.3d 432 (5th Cir.1997) (finding a due process violation where hearsay evidence regarding the violation was the sole evidentiary basis for revocation); Farrish v. Mississippi State Parole Bd., 836 F.2d 969, 978 (5th Cir.1988) (concluding that the admission of hearsay statements deprived the parolee of “his right to confront the adverse witness whose information provided the basis for parole revocation in a situation where his interest in exercising that right was paramount”). We must here ascertain whether the Supreme Court intended Morrissey ’s minimum due process protections to apply at both the violation and the mitigation stages of the revocation hearing or only to" }, { "docid": "7597823", "title": "", "text": "whether the parolee’s liberty is a “right” or a “privilege.” By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. 480 U.S. at 482, 92 S.Ct. at 2601. Consequently, an individual’s parole may not be revoked without due process of law. The district court determined that the process which is due includes a bail hearing. We disagree. In Morrissey, the Court discussed the due process requirements which attach to the revocation of parole. A preliminary parole revocation hearing must be “conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.” Id. at 485, 92 S.Ct. at 2602. The Court also stated: [T]he parolee should be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. The notice should state what parole violations have been alleged. At the hearing the parolee may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer. On request of the parolee, a person who has given adverse information on which parole revocation is to be based is to be made available for questioning in his presence. However, if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination. Id. at 486-87, 92 S.Ct. at 2603. If probable cause is determined to exist at the preliminary parole revocation hearing, a final revocation hearing must be held within a “reasonable time.” Id. at 488, 92 S.Ct. at 2604. The minimum due process requirements for the final revocation hearing include: (a) written notice of the claimed violation of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses" }, { "docid": "12797334", "title": "", "text": "including the stating of reasons for denial, but the plaintiff can succeed only if such statement is constitutionally or statutorily mandated. IV It is no longer necessary to draw a hard and fast line between affording the full panoply of procedural due process or giving none. Categorization of “rights” as opposed to privileges or acts of grace or clemency has ceased being a touchstone. Full procedural due process is required during a criminal prosecution; some but not full due process must be accorded thereafter during parole revocation proceedings. Parole release proceedings have not been as clearly identified. Morrissey v. Brewer, 408 U.S. 471, 480-482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) has established the benchmarks for parole revocation: “. . ' . [T] he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. . Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only to the conditional liberty properly dependent on observance of special parole restrictions. “. . . [D]ue process is flexible and calls for such procedural protections as the particular situation demands. . ****** “We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others.” The Court then determined the minimum requirements of due process, which included “a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.” 408 U.S. at 489, 92 S.Ct. at 2604. Subsequently, the Court held that parole revocation hearings could be conducted without the participation of counsel. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The district court and circuit courts are now entering the area of what, if any, due process is required in parole release hearings. The Second Circuit Court of Appeals held in the pre-Morrissey case of Menechino v. Oswald, 430 F.2d 403, 404, 412 (2nd" }, { "docid": "15209087", "title": "", "text": "PER CURIAM: Carmine Galante, who was mandatorily released from federal prison in 1974 pursu ant to 18 U.S.C. § 4163 after serving 12 years of a 20-year sentence imposed in 1962 by the Southern District of New York for violations of federal narcotics laws, appeals from an order of Judge Robert J. Ward dismissing his petition for a writ of habeas corpus. Petitioner sought release on bail pending termination of proceedings before the United States Parole Commission (“Commission”) for revocation of his status as a parolee. Revocation is sought on the ground that he violated one of the conditions of his release, namely, that he would not without permission of his probation officer associate with any person who had a criminal record. 28 C.F.R. § 2.40(a)(10). Galante’s principal contentions are (1) that he was denied due process by the Commission because it proceeded against him by warrant rather than by summons, and (2) that it is an abuse of discretion to deny him bail when he has not been charged with or convicted of a criminal act while on mandatory release. We disagree. Congress invested the Commission with wide discretion to decide whether it might proceed by warrant or summons against a person charged with violation of parole and expressly recognized that in seeking pursuant to 18 U.S.C. § 4213(a) to revoke the release of a person with a prior criminal record, which is the case here, it might be inappropriate for the Commission to proceed by summons rather then by warrant. See H.Conf.Rep.No.94-838, 94th Cong., 2d Sess. 33 (1976), reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 351, 365. As a mandatory releasee, a person in Galante’s position no longer enjoys the benefit of a presumption of innocence and has no constitutional right to bail. Argro v. United States, 505 F.2d 1374, 1377-78 (2d Cir. 1974); In re Whitney, 421 F.2d 337 (1st Cir. 1970). Bail pending a parole revocation hearing is therefore granted only in “most unusual circumstances,” Argro v. United States, supra, at 1378, or when “extraordinary or exceptional circumstances . make the grant of bail necessary" }, { "docid": "8046200", "title": "", "text": "his due process rights. “This Court considers the constitutional protections for revocation of supervised release to be the same as those afforded for revocation of parole or probation.” Sanchez, 225 F.3d at 175; accord United States v. Jones, 299 F.3d 103, 109 (2d Cir.2002). And “the conditional freedom of a parolee generated by statute is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment which may not be terminated absent appropriate due process safeguards.” Moody v. Daggett, 429 U.S. 78, 85-86, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) (citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)) (footnote added); see also Sanchez, 225 F.3d at 175 (noting that “the loss of liberty entailed in the revocation of probation is ‘worthy of some due process protection’ ” (quoting United States v. Brown, 899 F.2d 189, 193 (2d Cir.1990))). “The Supreme Court does not, however, attach to revocation proceedings the full range of procedural safeguards associated with a criminal trial, because a probationer already stands convicted of a crime.” Sanchez, 225 F.3d at 175 (citation omitted; footnote added). After an arrest warrant for a parolee or releasee has been issued on the basis of his or her parole or supervised release violation, there is “no constitutional duty to provide [the parolee or releasee with] an adversary ... hearing until he is taken into custody as' a parole [or supervised release] violator by execution of the warrant,” Moody, 429 U.S. at 89, 97 S.Ct. 274, because “execution of the warrant and [consequent] custody under that warrant [is] the operative event triggering any loss of liberty attendant upon parole [or supervised release] revocation,” id. at 87, 97 S.Ct. 274. Therefore, “delay between a defendant’s violation of supervised release and the execution of the violation warrant does not, in and of itself, violate a defendant’s due process rights.” Sanchez, 225 F.3d at 175. We have thus held in the context of the revocation of a defendant’s supervised release that a'delay of four years from the date of the violation to. the execution of the violation warrant" }, { "docid": "15124330", "title": "", "text": "the question whether the parolee breached a condition of his parole. F.2d 1048 (5th Cir.1988), we stated: In United States v. Holland, 850 When it is determined that a person charged with a probation violation admits the violation charged, the procedural safeguards announced in Morrissey v. Brewer are unnecessary. However, even a probationer who admits the allegations against him must still be given an opportunity to offer mitigating evidence suggesting that the violation does not warrant revocation. Contrary to the government’s contentions, a probationer’s admission that he violated the terms of probation does not entitle him to less due process than a probationer who contests the asserted violations. Even a probationer who admits the allegations against him must be given an opportunity to “explain away the accusation” and to offer mitigating evidence suggesting that the violation doesn’t warrant revocation. Id. at 1050-51 (citations omitted). We think it clear from this passage and from the Supreme Court’s decision in Morrissey that a parolee’s admission of a violation does not eviscerate the due process protections otherwise accorded him. Although the Court distinguished the question whether the parolee violated a condition from the question whether that violation warranted revocation, it viewed the revocation hearing as properly addressing both inquiries. See Morrissey, 408 U.S. at 484, 92 S.Ct. at 2602 (“What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.”); cf. Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636 (1985) (noting that, where there is discretion to continue probation or parole, “the parolee or probationer is entitled to an opportunity to show not only that he did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition”). In identifying the minimum due process requirements for a revocation hearing, the Court did not suggest that we adhere to those requirements at the violation stage and simply" }, { "docid": "902346", "title": "", "text": "release on the bank robbery sentence imposed in 1973, Smith was taken into custody on the parole violator’s warrant. Although 18 U.S.C.A. § 4214(c) requires the Commission to conduct a final revocation hearing within 90 days of Smith’s retaking, i. e., within 90 days of July 21,1977, no such hearing was held within the mandated period. Accordingly, on October 28, 1977, the 99th day after being retaken, Smith brought this petition for a writ of habeas corpus. A Commission hearing was immediately scheduled and held on November 8, 1977, some 110 days from the date of Smith’s retaking. Smith’s pro se complaint does not allege he was prejudiced in any way by this delay. Smith concedes that if released, he would remain on parole, under the general jurisdiction of the Parole Commission, since 18 U.S.C.A. § 4210(b) provides that the Commission’s jurisdiction terminates at the expiration of the maximum term for which the parolee was sentenced, with certain exceptions not relevant to the present case. He claims, however, that § 4214(c) establishes a per se rule under which the Commission lost the power to revoke his parole and incarcerate him on the basis of the outstanding parole violator’s warrant when they did not act within the statutory 90-day period. He asserts he is therefore entitled to be released from custody. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court held that a parolee is constitutionally entitled to certain due process protections before his parole may be revoked. One of those requirements is that a final revocation hearing must be held “within a reasonable time” after execution of the parole violator’s warrant. 408 U.S. at 487-488, 92 S.Ct. 2593. Any delay requires a two-step inquiry to determine if a parolee is entitled to relief. First, the delay, considering all of the circumstances, must be unreasonable. Second, the delay must be prejudicial. There being no statutory directive as to what period of delay was unreasonable before the 1976 enactment of § 4214(c), the courts focused on the second factor, prejudice, as determinative. See Gaddy" }, { "docid": "12383705", "title": "", "text": "of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court held that the constitutional right to procedural due process attaches to parole revocation hearings. In reaching this conclusion, the Court recognized that “the concept of due process is flexible,” but that its flexibility “is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.” Id. at 481, 92 S.Ct. at 2600. As such, although a formal trial-like procedure is not required, the Court, after concluding that the Due Process Clause of the Fourteenth Amendment provided at least informal procedural protections to parolees, outlined the minimum constitutional requirements for the two critical stages in the parole revocation process. First, states conduct a preliminary hearing, in which the State determines “whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.” 408 U.S. at 485, 92 5.Ct. at 2602. Because there may be a substantial lag time between the parolee’s arrest and subsequent determination of whether parole should be revoked, the Court recognized the need for “some minimal inquiry” which would take place “as promptly as convenient” to determine whether the parolee should be incarcerated pending a final determination by the parole board. Accordingly, at the preliminary hearing stage, the Court suggested at least three procedural protections: [1] the parolee should be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. The notice should state what parole violations have been alleged. [2] At the hearing the parolee may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer. [3] On request of the parolee, persons who have given adverse information on which parole revocation is to be based are to be made available for questioning in his presence. However, if the hearing officer determines that the informant would be subjected to risk" }, { "docid": "7597855", "title": "", "text": "from the views I expressed for the panel in Faheem-El v. Klincar, 814 F.2d 461 (7th Cir.1987), I concur in Judge Flaum’s opinion because it permits Judge Moran “to determine whether due process requires Illinois to furnish additional procedures to protect a parolee’s liberty interest.” This does not rule out the Faheem-El panel suggestion that due process requires early conditional release consideration for parolees arrested on new criminal charges. 814 F.2d at 477. Both Faheem-El’s and the class’ true complaint is not that as parolees they have an absolute right to bail but rather that when they allegedly violate their parole, Illinois bars them from obtaining freedom for long periods of time regardless of the nature of their prior convictions or the possible criminal activity that prompted their arrests. If on remand the district court requires Illinois to move more quickly to identify arrested parolees who can safely be released, such a mandate need not affect the state’s interest in regulating parole. The en banc result is harmonious with Morrissey v. Brewer, 408 U.S. 471, 485-87, 92 S.Ct. 2593, 2602-03, because there the Supreme Court required a preliminary hearing “as promptly as convenient after arrest [of a parolee] * * * to determine * * * whether there is probable cause to hold the parolee for the final decision of the parole board on revocation.” In turn the parole revocation hearing must be “within a reasonable time after the parolee is taken into custody,” and a lapse of two months was considered by the Court not “to be unreasonable.” 408 U.S. at 488, 92 S.Ct. at 2603-04. As outlined in the panel’s opinion, these due process strictures have not been observed in Illinois. In Faheem-El’s class action, it was shown that he, for example, was held confined for almost six weeks without receiving a preliminary revocation hearing and over one year before his final revocation hearing. 814 F.2d at 464. The record reflects that his treatment was not atypical of other parolees arrested for allegedly violating their parole. In his careful review of the evidence the district judge found that" }, { "docid": "17142662", "title": "", "text": "constitutional protection in the probation and parole contexts. In the first of the trilogy, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the defendant was placed on probation and the “imposition of sentence was deferred.” 389 U.S. at 130, 88 S.Ct. at 255. After the defendant violated the conditions of his probation, the district court, without asking the unrepresented defendant whether he wanted appointed counsel, revoked his probation and imposed a ten-year jail term. The Supreme Court held that the defendant-probationer had a Sixth Amendment right to counsel at the combined probation revocation and sentencing hearing. The Supreme Court concluded that the imposition of the “deferred” sentence after probation was revoked triggered the Sixth Amendment because sentencing is a “stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” 389 U.S. at 134, 88 S.Ct. at 257. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court turned from the imposition of a deferred sentence following the revocation of probation to procedural protection applicable to parole revocation proceedings. The Court held that the loss of liberty that may result from revocation of parole gives rise to a liberty interest cognizable under the Due Process Clause. After Morrissey, parole may not be revoked unless the parolee is afforded a hearing as to probable cause and a final revocation hearing. At the preliminary parole revocation hearing, a parolee is entitled to notice of the alleged parole violations, an opportunity to appear and to present evidence, a conditional right to confront the government’s witnesses, an independent decision-maker, and a written report of the hearing. See Morrissey, 408 U.S. at 485-487, 92 S.Ct. at 2602-03. The “minimum requirements of due process” applicable to the final revocation hearing are substantially similar. See Id. at 489, 92 S.Ct. at 2604. The question of “whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent” was left open. Id. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)," }, { "docid": "935030", "title": "", "text": "staff and other inmates, and the prisoner’s parole plan—his employment and residence arrangements and the environment to which he plans to return. The Board possesses the expertise and experience for ascertaining which factors are determinative of the unique situation presented by each applicant. Scarpa v. United States Board of Parole, supra. The statute, 18 U.S. C.A. §§ 4202, 4203, expressly gives the Board broad discretion in determining parole eligibility in recognition of the fact that many variables, some of an intangible and subjective nature, go into making an informed and intelligent parole decision. In short, in providing for parole, Congress realized the difficult and imprecise nature of parole prognosis. Therefore, absent an abuse of discretion amounting to the denial of a constitutional right, and absent a decision that is clearly inconsistent with the broad statutory criteria, a court will not review the Board’s discretion in denying an application for parole. The courts should not serve as a super-Parole Board. There remains petitioner’s contention that the Board’s mode of operation violates the due process clause of the fifth amendment. There is a difference of opinion among the lower federal courts as to whether due process applies to parole decision-making, and if it does, the nature of the process that is due. In Morrissey v. Brewer, 1972, 408 U. S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 the Supreme Court held that although parole revocation does not call for the full panoply of rights due a defendant in a criminal proceeding, revocation of a parolee’s liberty falls within the protection of the due process clause. Thus, the court held that a revocation hearing must be conducted reasonably soon after the parolee’s arrest and that minimum due process requirements are: (1) written notice of the claimed violations of parole; (2) disclosure to the parolee of the evidence against him; (3) opportunity to be ' heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses, unless the hearing officer specifically finds good cause for not allowing confrontations; (5) a neutral and detached hearing body such" }, { "docid": "7597814", "title": "", "text": "against challenges that these provisions violated both due process and the Excessive Bail Clause). The Court stated: “we reject the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through the regulation of pretrial release.” Id. at 2104. The initial inquiry therefore is whether Illinois’ interest in regulating parole is a “compelling interest” as that term is used in the context of the Eighth Amendment. C. It is useful to begin, as the Supreme Court did in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), with a review of the purpose and function of parole. “The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Id. at 477, 92 S.Ct. at 2598. Specifically, parole is an established variation on imprisonment of convicted criminals. Its purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed. It also serves to alleviate the costs to society of keeping an individual in prison. Id. In order to achieve these objectives, parolees are subjected to specified conditions for the duration of their parole term. These conditions often substantially restrict a parolee’s activities, but are essential to the reintegration process. “The enforcement leverage that supports the parole conditions derives from the authority to return the parolee to prison to serve out the balance of his sentence if he fails to abide by the rules.” Id. at 478-79, 92 S.Ct. at 2599. Parole therefore creates only a conditional liberty interest; revocation of parole deprives the parolee “only of the conditional liberty properly dependent on observance of special parole restrictions.” Id. at 480, 92 S.Ct. at 2600. The reasoning that justifies releasing prisoners on parole also dictates that the revocation of parole need not involve “the full panoply of rights” and procedural safeguards provided to a defendant in a criminal proceeding. Id. Release of the parolee before the end of" }, { "docid": "22601468", "title": "", "text": "constitutionally valid, (2) capable of ‘functioning independently,’ and (3) consistent with Congress’s basic objectives in enacting the statute.” To the extent that Hinson complains that the district court imposed a 24-month sentence based on facts found by the court that were neither found by a jury nor admitted by Hinson, Booker is disposi-tive. Ill The decision in Booker did not, however, squarely address whether a defendant is entitled to a jury trial to determine whether the terms of supervised release have been violated. We see no principled reason for treating revocation of supervised release differently from revocation of parole in this regard. The United States Supreme Court has held that “revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” The Supreme Court further observed that “[g]iven the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.” In describing the process that was due in revoking parole, the Supreme Court included neither the right to a jury trial nor the burden of proof beyond a reasonable doubt: [T]he minimum requirements of due process ... include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact-finders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is" }, { "docid": "11145591", "title": "", "text": "revocation process will have run its course before full review of a bail order, including a possible appeal to the Supreme Court, could be obtained. Typically, then, bail orders will be too short in duration to be fully litigated before they expire. The second requirement is clearly met here. The Parole Commission states that it is repeatedly presented with this problem. It can reasonably be expected that parolees will continue to seek bail from the courts if they believe it will be granted even when the Commission refuses to release them before a revocation hearing. II. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), held that the due process clauses of the United States Constitution require that certain minimum procedures be followed when parole is revoked. See also Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In 1976, Congress, through the Parole Commission and Reorgánization Act, 18 U.S.C. §§ 4201, et seq., revamped the parole system for federal prisoners. 18 U.S.C. §§ 4213-15 contain provisions relating to parole revocation. The United States Parole Commission has also issued regulations regarding revocation proceedings. See 28 C.F.R. §§ 2.44, et seq. If a parolee is alleged to have violated his parole the Commission under § 4213 may either summon the parolee to a § 4214 revocation hearing or issue a warrant and retake the parolee. See 28 C.F.R. § 2.44. Of course, the question of release arises only when the Commission elects to retake and incarcerate the parolee. See 28 C.F.R. § 2.49(d). Section 4214(a)(1)(A) provides that the parolee is entitled to a “preliminary hearing . . . without unnecessary delay, to determine if there is proba ble cause to believe that he has violated a condition of his parole.!’ The parolee is informed at the end of the hearing whether probable cause is believed to exist. 28 C.F.R. § 2.48(d). If probable cause is found, § 4214(a)(l)(A)(i-iv) states that the Commission: “may restore any parolee to parole supervision if: (i) continuation of revocation proceedings is not warranted; or (ii) incarceration of the" }, { "docid": "7597821", "title": "", "text": "the plaintiff class were released. Forecasting criminal behavior, however, is difficult, and parole is granted with the full knowledge that a substantial percentage of parolees are subjected to revocation and returned to prison. See Morrissey, 408 U.S. at 479, 92 S.Ct. at 2599. Members of the plaintiff class were arrested on new charges while on parole. At their preliminary revocation hearing the hearing officer determined that there was probable cause to believe that they actually committed a new crime. The Board does not make a conclusive determination whether a parole violation has occurred until the parolee’s final revocation hearing. In these circumstances, we conclude that Illinois’ decision to detain members of the certified class pending the conclusion of the revocation process is not excessive. We appreciate the district court’s concern that Illinois has painted with a broad brush and has failed to distinguish between the variety of situations presented by parolees arrested on new charges. We do not, however, believe this is impermissible under the Eighth Amendment. Illinois has a compelling interest in regulating its parole system. The Illinois legislature was addressing the specific situation in which there is probable cause to believe that a parolee has committed a new crime. Illinois has decided that there is serious doubt whether these individuals can function in society without committing antisocial acts, and that therefore they must be detained pending their final revocation hearings. Illinois’ decision does not violate the Excessive Bail Clause. V. The district court’s second ground for concluding that the Constitution requires Illinois to provide the class members with an individualized bail hearing was the Due Process Clause of the Fourteenth Amendment. We reverse. A. An individual’s conditional liberty associated with his or her status as a parolee is a liberty interest protected by the Fourteenth Amendment. In Morrissey, the Supreme Court stated: the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a “grievous loss” on the parolee and often on others. It is hardly useful any longer to try and deal with this problem in terms of" } ]

[ { "docid": "23631217", "title": "", "text": "‘negligent interference with contract’ for more familiar tort terrain,” Petition of Kinsman Transit Co., 388 F.2d 821, 824 (2d Cir. 1968), we are convinced that prior authority in this circuit precludes us from departing from the rule that merely negligent interference with contract rights is not actionable. Kaiser Aluminum & Chem. Corp. v. Marshland Dredging Co., 455 F.2d 957 (5th Cir. 1972). Appellant recognizes that Kaiser Aluminum, supra, and Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), raise substantial barriers to his recovery. He, therefore, attempts to distinguish these cases on their facts and narrowly limit the sphere of their application. The facts of each case may be stated quite summarily. The plaintiff in Robins, a time-charterer of a vessel, sued the owner of a dry dock which had negligently damaged the vessel’s propeller. The plaintiff sought recovery for damages suffered as a result of the vessel’s unavailability on the charter date. In an opinion by Justice Holmes, the Supreme Court denied recovery, holding that “as a general rule, . a tort to the person or property of one man does not make the tortfeasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong.” 275 U.S. at 309, 48 S.Ct. at 135. Kaiser Aluminum, like Robins, involved a three-party situation. Kaiser sued Marshland for consequential damages suffered by Kaiser when one of Marshland’s barges dropped a heavy anchor on a gas pipeline owned by a third party, Sugar Bowl Gas Company. The pipeline supplied gas to Kaiser’s plant which had to be shut down temporarily as a result of the interruption of gas supplies. We affirmed the district court’s grant of summary judgment for the defendant, stating that recovery was barred as a matter of law because there was (1) no contention that the interference with Kaiser’s contract rights was intentional; (2) no evidence that Marshland had knowledge of the existence of the contract between Kaiser and Sugar Bowl Gas, and (3) no showing of facts, by" } ]

[ { "docid": "15469189", "title": "", "text": "Judge, dissenting: I agree with the district court that Ve-nore’s claim is foreclosed by Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed.2d 290 (1927), and our per curiam decision in Rederi A/B Soya v. Evergreen Marine Corp., 1973 A.M.C. 538 (4 Cir. 1972), adopting the opinion of the district court, 1972 A.M.C. 1555 (E.D.Va.1971). I would affirm. Of course, in Robins Dry Dock the libel was not brought to recover loss of use measured by the hire paid by the charterer because, in that case, the charter party suspended the charterer’s liability for hire while the vessel was out of service. By contrast, in the instant case the loss of use is sought to be measured by the hire which Venore was required to pay to the owner while the vessel was disabled. But I disagree with the majority that Robins Dry Dock can be read to turn solely on the claimed measure of damages, and its controlling effect on the instant case thus so neatly avoided. Recovery in Robins Dry Dock was denied, not on the ground that the damages were too remote, but on the ground that a time charterer has no standing or property interest to recover from an unintentional wrongdoer: The injury to the propeller was no wrong to the [time charterers] but only to those to whom [the vessel] belonged. . [The time charterers’] loss arose only through their contract with the owners— and while intentionally to bring about a breach of contract may give rise to a cause of action ... no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong. . . . The law does not spread its protection so far. 275 U.S. at 308-09, 48 S.Ct. at 135. Robins Dry Dock thus establishes a rule of liability, not of damages, as the" }, { "docid": "19684114", "title": "", "text": "charges they paid to Lykes. 7. The Supreme Court in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927) set out the general rule that “a tort to the person or property of one man does not make the tortfeasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong.” Id. at 309, 48 S.Ct. at 135. In Robins Dry Dock, time charterers of a steamship sought recovery for their loss of use of the vessel against a dry dock company which had damaged the vessel while it was being serviced by the dry dock. The Court held that the time charterers were barred from recovery because defendant’s tort injured only the propeller, which belonged to the owner; plaintiffs’ loss resulted from defendant’s negligent interference with their charter. Id. at 308-09, 48 S.Ct. at 135. The Fifth Circuit was upheld consistently the Robins rule. See, e.g., Vicksburg Towing & Mississippi Marine Transport, 609 F.2d 176 (5th Cir.1980); Louisville & Nashville Railroad Co. v. The Tug M/V BAYOU LACOMBE, 597 F.2d 469 (5th Cir.1979); Dick Meyers Towing Service, Inc. v. United States of America, 577 F.2d 1023 (5th Cir. 1978) (per curiam), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). The appellate court has emphasized that the “critical factor in applying Robins is ‘the character of the interest harmed.’ ” Louisville & Nashville Railroad Co., supra at 473 (quoting Dick Meyers, supra at 1025). These cases have generally involved physical damage to a structure, such as a lock or bridge, owned by one party, and non-physical damages, such as loss of the use of the structure or interference with contractual rights, suffered by a non-owning third party- The Supreme Court distinguished Robins in Aktieselskabet Cuzco v. THE SUCARSECO, 294 U.S. 394, 55 S.Ct. 467, 79 L.Ed. 942 (1935). In that case, the Court required a negligent non-carrying vessel to pay for the share of a general average that cargo had to bear under the bill of" }, { "docid": "22588867", "title": "", "text": "The Fifth Circuit’s Extensions o/Robins This Court’s most recent extension of Robins, and one that is squarely on point with the present case, is Akron Corp. v. M/T Cantigny, 5 Cir.1983, 706 F.2d 151 reh’g denied, 5 Cir.1983, 711 F.2d 1054. In Akron, a ship grounded in the Southwest Pass of the Mississippi River, blocking large vessel traffic from entering or leaving the river for several days. Owners and charterers of vessels blocked by the closure of the pass sued for demurrage, additional fuel expenses, tug hire, pilot fees, and other delay expenses. This Court denied recovery: “Robins stands for the proposition that a party may not recover for economic losses not associated with physical damages. Id. The rule’s purpose is to prevent limitless liability for negligence and the filing of law suits of a highly speculative nature. This court noted in Bayou Lacombe [5 Cir.1979, 597 F.2d 469] that ‘[w]hatever the wisdom of the traditional rule of nonliability for negligent acts causing economic loss, Robins reflects the state of law in this circuit,’ 597 F.2d at 472.” 706 F.2d at 153 (emphasis added). In Dick Meyers Towing Service, Inc. v. United States, 5 Cir.1978, 577 F.2d 1023, cert. denied, 1979, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455, this Court denied recovery for losses after navigation on the Black Warrior River in Alabama was completely halted for five months by a faulty lock near the Bankhead Dam. Meyers sued for recovery of the loss of towing business sustained as a result of the closing of the river. This Court affirmed the district court’s denial of recovery, relying on Robins and Kaiser Aluminum & Chemical Corp. v. Marshland Dredging Co., 5 Cir.1972, 455 F.2d 957: “The law has traditionally been reluctant to recognize claims based solely on harm to the interest in contractual relations or business expectancy____ In consequence, as stated in Kaiser Aluminum, a plaintiff may not recover for interference with his contractual relations unless he shows that the interference was intentional or knowing. While the wisdom of that traditional reluctance is open to debate, the rule based" }, { "docid": "2716031", "title": "", "text": "pilot became aware of the downriver blockage and headed upriver for the nearest anchorage. When the AKRON received notice March 28 that the Pass was clear for vessel traffic, it was too late in the day to obtain a pilot to take her through that day. The owners of the AKRON seek recovery for demurrage, additional fuel expenses, tug hire, pilot fees and expenses for the delay from 10:30 a.m. March 24, when it left the grain elevator, until 8:43 a.m. March 29, when it passed the elevator headed downriver. The owners and time charterers of the M/T THALAS-SINI DOXA seek delay damages for the period from 3:20 p.m. March 24, when the THALASSINI DOXA anchored at the 12-mile anchorage under the orders of the Coast Guard, until 8:15 p.m. March 29, when the vessel weighed anchor and headed for the Gulf. In Kingston, the owners of vessels whose passage into or out of the Port of Tampa was delayed because a sunken vessel blocked the main ship channel of Tampa Bay. sought delay damages. The eleventh circuit affirmed the district court’s dismissal of the suits for failure to state a claim upon which relief could be granted. The Kingston court found the question to be governed by the rule of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), and its Fifth Circuit progeny, Vicksburg Towing Co. v. Mississippi Marine Transport Co., 609 F.2d 176 (5th Cir.1980); Louisville and Nashville Railroad Co. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir.1979); Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). Kingston, 667 F.2d at 35. We agree. Robins stands for the proposition that a’ party may not recover for economic losses not associated with physical damages. Id. The rule’s purpose is to prevent limitless liability for negligence and the filing of law suits of a highly speculative nature. This court noted in Bayou Lacombe that “[whatever the wisdom of the traditional rule of nonliability" }, { "docid": "16750355", "title": "", "text": "unknown to the doer of the wrong.” 275 U.S. at 309, 48 S.Ct. at 135. Although this circuit has questioned the rule’s wisdom, we nonetheless have abided by it. Louisville & Nashville Railroad Company v. M/V BYULACOMBE, 597 F.2d 469, 472 (5th Cir.1979) (“Whatever the wisdom of the traditional rule of non-liability for negligent acts causing economic loss, Robins reflects the state of law in this circuit”). See also Kingston Shipping Co., Inc. v. Roberts, 667 F.2d 34 (11th Cir.1982); Hercules Carriers, Inc. v. State of Florida, 720 F.2d 1201 (11th Cir.1983) (Clark, J., concurring), district court judgment affirmed by operation of law because of equally divided en banc court, 728 F.2d 1359 (11th Cir.1984). Despite the general rule announced in Robins Drydock, the district court found that the crew members of the PRISCILLA ANN were entitled to recover their lost share of the catch due to the vessel’s delay. In so concluding, the court relied on a line of Ninth Circuit cases holding that the rationale of Robins Drydock does not preclude recovery of lost profits by fishing vessel owners and commercial fishermen. See Jones v. Bender Welding & Machine Works, Inc., 581 F.2d 1331, 1337 (9th Cir. 1978); Union Oil Co. v. Oppen, 501 F.2d at 567; Carbone v. Ursich, 209 F.2d 178, 181-82 (9th Cir.1953); see also Reefer Queen Co., Inc. v. Maritime Construction & Design, 73 Wash.2d 774, 440 P.2d 448 (1969). This circuit has yet to address the issue, and we approach its resolution cognizant that not all courts have embraced the Ninth Circuit’s view. See Henderson v. Arundel Corp., 262 F.Supp. 152 (D.Md.1966), aff'd 384 F.2d 998 (4th Cir.1967); Casado v. Schooner Pilgrim, Inc., 171 F.Supp. 78 (D.Mass.1959). In Carbone v. Ursich, supra, the Ninth Circuit overruled a prior case denying crew members a right to recover for their lost share due to a third party’s negligence disabling the vessel. The court based its upholding of the fishermen’s claims on several grounds. First, the court noted that Robins Drydock was decided against a background of case law which had upheld the fishermen’s right to" }, { "docid": "704757", "title": "", "text": "the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S.Ct. 2548; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). B. Analysis Defendant IMT moves for summary judgment based on two independent grounds. First, IMT argues that under Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), maritime law precludes NBT’s claims for economic damages in this action because NBT does not own the property that sustained physical damage, nor does it have a contract with IMT with respect to the property. Second, IMT asserts that general maritime law precludes NBT’s claims because IMT had free use of the vessel for the entire period of lay days it was accorded under the transfer agreement with Eramet. Robins Dry Dock established the principle that in the absence of a contract, a time charterer may not recover from a docking company for loss of use of a vessel damaged by the docking company, as the charterer does not own the vessel and suffers no physical damage to its own property. In Robins, the employees of a dry dock negligently damaged a vessel during ordinary maintenance. The vessel was subject to a charter agreement at the time, so the damage deprived the charterer of the use of the vessel. The charterer did not have to pay the vessel owners charter hire while the repairs took place, but the charterer still sued the dry dock for loss of use of the vessel as a result of the extra time needed to repair the damage. The Court denied the charterer’s claim because it was not an intended beneficiary of the drydocking contract between the vessel owners and the dry dock, and because no tort claim arose simply because the charterer had a contract with the vessel owners. Justice Holmes wrote, “[A]s a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract" }, { "docid": "6512568", "title": "", "text": "proof; it does not fix liability. If a party fails to carry the burden imposed on it by the rule, the rule does not require that party to bear 100% of the responsibility for the allision. Liability still must be apportioned according to the comparative fault of the parties, as mandated by the Supreme Court’s landmark ruling in United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975). “The rule of The Pennsylvania concerns only the burden of proof for showing causation; it does not determine ultimate liability for damages.” Sheridan I, 834 F.2d at 478. Accordingly, even if it was error for the district court to fail to apply The Pennsylvania rule to United Gas, the error was harmless, as the district court went on to find that United Gas and Offshore Express were equally responsible for the allision and to apportion damages accordingly. See Florida E. Coast Ry. Co. v. Revilo Corp., 637 F.2d 1060, 1067 (5th Cir. Unit B 1981) (affirming judgment in which trial court found statutory violation and applied The Pennsylvania rule, concluding that the violator had not carried its burden and should be held liable for 80% of the damages sustained). E. Pennzoil’s Damages and the rule of Robins Dry Dock In Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 309, 48 S.Ct. 134, 135, 72 L.Ed. 290 (1927), Mr. Justice Holmes wrote for the Court that as a general rule, ... a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong. Despite stiff criticism and several potent challenges, the principal announced by Justice Holmes survives to this day; it is the law in this Circuit that a plaintiff in an admiralty case cannot recover negligently inflicted economic losses where there is no physical damage to any property in which the plaintiff has a proprietary interest. State of Louisiana ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019," }, { "docid": "16750354", "title": "", "text": "under maritime tort law even though no physical damage has occurred. B. The Crew Members’ Claims Caterpillar also contends that the general rule barring recovery solely for economic loss precludes the crew members from recovering their share of the lost catch. The rule in this context, where no contractual relationship between the plaintiff and the defendant exists, focuses not on the applicability of the law of sales or tort law, but on concerns that the defendant will be liable for remote or speculative damages. Union Oil Company v. Oppen, 501 F.2d at 563. The rule also has been justified based on the doctrine of proximate cause. Id. The defendant again has correctly stated the general rule. The Supreme Court in Robins Drydock & Repair Company v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), held that “as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong.” 275 U.S. at 309, 48 S.Ct. at 135. Although this circuit has questioned the rule’s wisdom, we nonetheless have abided by it. Louisville & Nashville Railroad Company v. M/V BYULACOMBE, 597 F.2d 469, 472 (5th Cir.1979) (“Whatever the wisdom of the traditional rule of non-liability for negligent acts causing economic loss, Robins reflects the state of law in this circuit”). See also Kingston Shipping Co., Inc. v. Roberts, 667 F.2d 34 (11th Cir.1982); Hercules Carriers, Inc. v. State of Florida, 720 F.2d 1201 (11th Cir.1983) (Clark, J., concurring), district court judgment affirmed by operation of law because of equally divided en banc court, 728 F.2d 1359 (11th Cir.1984). Despite the general rule announced in Robins Drydock, the district court found that the crew members of the PRISCILLA ANN were entitled to recover their lost share of the catch due to the vessel’s delay. In so concluding, the court relied on a line of Ninth Circuit cases holding that the rationale of Robins Drydock does not preclude recovery of" }, { "docid": "22588817", "title": "", "text": "has consistently refused to allow recovery for economic loss absent physical damage to a proprietary interest. In Kaiser Aluminium & Chemical Corp. v. Marshland Dredging Co., Inc., 455 F.2d 957 (5th Cir.1972), the plaintiff lost gas supplies when the defendant negligently broke a gas pipeline. We held that because the interference with Kaiser’s business was only negligently inflicted, recovery was precluded as a matter of law. In Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir.1978), we denied recovery to a tug boat operator for damages suffered when a lock on Alabama’s Warrior River was closed as a result of defendant’s negligence. We explained: The law has traditionally been reluctant to recognize claims based solely on harm to the interest in contractual relations or business expectancy. The critical factor is the character of the interest harmed and not the number of parties involved. Id. at 1025. We denied recovery to the Louisville & Nashville Railroad for its loss suffered when the M/V BAYOU LACOMBE damaged a bridge that the railroad had a contract right to use. Louisville & Nashville R.R. Co. v. M/V BAYOU LACOMBE, 597 F.2d 469 (5th Cir.1979). We rejected the railroad’s argument that its right to use the damaged bridge was a property right sufficient to support recovery, concluding that whatever its label, recovery was sought for loss of an economic expectancy. Id. at 474. In Vicksburg Towing Co. v. Mississippi Marine Transport Co., 609 F.2d 176 (5th Cir.1980) (Politz, J.), we sustained recovery by an owner of a dock leased to another for damages to the dock caused by defendant’s negligence. We asserted that the distinction between recovery by an owner when his property was damaged and recovery by others, as applied in Robins, Dick Meyers, and M/V BAYOU LACOMBE, was “meaningful, real and dispositive.” Id. at 177. -5- Nor has this circuit been the sole guardian of the Robins Dry Dock principle. Rederi A/B Soya v. Evergreen Marine Corp., 1972 A.M.C. 1555, (E.D.Va.1971), aff'd, 1972 A.M.C. 538 (4th Cir.1972), was a case factually similar to Robins. There the Fourth Circuit adopted" }, { "docid": "13748105", "title": "", "text": "(interpreting Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927)) (general maritime law recognizes \"no recovery for economic loss absent physical injury to a proprietary interest”), cert. denied sub nom. White v. M/V Testbank, 477 U.S. 903, 106 S.Ct. 3271, 91 L.Ed.2d 562 (1986). . See Cargill, Inc. v. Doxford & Sunderland, Ltd., 782 F.2d 496, 498-99 (5th Cir.), reh'g denied, 785 F.2d 1296, 1297-98 (5th Cir.1986) (per curiam). Compare Bean II, 833 F.2d at 67-68 (damage to plaintiffs property was unforeseeable) with Bean I, 772 F.2d 1217 (5th Cir.1985) (plaintiff had sustained damages to its proprietary interest). While Judge Williams writing alone has suggested that \"the common legal synonym for ‘proprietary interest’ is ‘ownership,’ ” see Testbank, 752 F.2d at 1034 (Williams, J., concurring), Fifth Circuit panels subsequent to Testbank have not been so narrow and would appear to extend proprietary interest status to lessees, such as Pillsbury and ConAgra, who hold exclusive possessory right to use and control the property in question and owe a contractual duty to the owners to repair such property. See Bosnor, S.A. de C. V. v. Tug L.A. Barrios, 796 F.2d 776, 783 (5th Cir.) (bareboat charterer had proprietary interest in vessel chartered), reh’g denied mem., 803 F.2d 717 (5th Cir.1986); see also Texas Eastern Transmission Corp. v. McMoRan Offshore Exploration Co., 877 F.2d 1214, 1224-26 (5th Cir.) (contrasting Louisville & Nashville Railroad Co. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir.1979) (finding no such interest where plaintiff had a nonexclusive right to use the property at issue) to Domar Ocean Transportation, Ltd. v. M/V Andrew Martin, 754 F.2d 616, 618-19 (5th Cir.1985) (finding that plaintiff had proprietary interest in integrated tug/barge system where it owned tug and leased barge)), reh’g denied, 877 F.2d at 1229, further reh’g denied, 877 F.2d at 1230 (5th Cir.1989). . See Freeport Sulphur, 526 F.2d at 303-04. See generally T. Schoenbaum, supra note 82, § 13-5, at 465. . See Amoco Transport Co. v. S/S Mason Lykes, 768 F.2d 659, 668 (5th Cir.1985). This situation most typically" }, { "docid": "19684113", "title": "", "text": "to the other vessel, the MASON LYKES, a violation of rules 19(d) and 8(b) & (c). 33 U.S.C. foil. § 1602. 5. These violations are presumed to have caused and contributed to the collision. The Court finds that the presumptions raised were not rebutted and, consequently, the Court finds that these violations were causes of the collision. 6. Having found that Amoco is partially at fault, the Court must decide whether the damages sought by the cargo interests are assessable against Amoco. If the non-carrying vessel is partially negligent, cargo may seek all its physical damages from that vessel. The ATLAS, 93 U.S. 302, 23 L.Ed. 863 (1876). The non-carrying vessel then can turn to the carrying vessel for the contribution up to its share of the proportionate negligence. The CHATTAHOOCHEE, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801 (1899); Allied Chemical Corp. v. Hess Tankship Co. of Delaware, 661 F.2d 1044, 1058 (5th Cir.1981). In this case, however, the cargo was not damaged. The cargo interests seek recovery from Amoco for the freight charges they paid to Lykes. 7. The Supreme Court in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927) set out the general rule that “a tort to the person or property of one man does not make the tortfeasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong.” Id. at 309, 48 S.Ct. at 135. In Robins Dry Dock, time charterers of a steamship sought recovery for their loss of use of the vessel against a dry dock company which had damaged the vessel while it was being serviced by the dry dock. The Court held that the time charterers were barred from recovery because defendant’s tort injured only the propeller, which belonged to the owner; plaintiffs’ loss resulted from defendant’s negligent interference with their charter. Id. at 308-09, 48 S.Ct. at 135. The Fifth Circuit was upheld consistently the Robins rule. See, e.g., Vicksburg Towing & Mississippi Marine Transport, 609 F.2d" }, { "docid": "6512569", "title": "", "text": "found statutory violation and applied The Pennsylvania rule, concluding that the violator had not carried its burden and should be held liable for 80% of the damages sustained). E. Pennzoil’s Damages and the rule of Robins Dry Dock In Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 309, 48 S.Ct. 134, 135, 72 L.Ed. 290 (1927), Mr. Justice Holmes wrote for the Court that as a general rule, ... a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong. Despite stiff criticism and several potent challenges, the principal announced by Justice Holmes survives to this day; it is the law in this Circuit that a plaintiff in an admiralty case cannot recover negligently inflicted economic losses where there is no physical damage to any property in which the plaintiff has a proprietary interest. State of Louisiana ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019, 1020 (5th Cir.1985) (en banc), cert. denied, 477 U.S. 903, 106 S.Ct. 3271, 91 L.Ed.2d 562 (1986). Offshore Express urged the district court and urges this Court to apply the Fifth Circuit’s version of Robins Dry Dock to the facts of this case. Offshore Express argues that Pennzoil had no proprietary interest in the damaged pipeline and that there was no physical damage to the Voisin well. Thus, Offshore Express concludes that Pennzoil’s only losses are economic and unrecoverable. Offshore Express’ argument has no merit. The rule of Robins Dry Dock was never intended to apply to cases in which the plaintiff has suffered some physical damage to property in which he has a proprietary interest, and M/V TESTBANK did not extend the rule to such cases. Indeed, almost immediately after the Fifth Circuit reaffirmed the rule of Robins Dry Dock in M/V TESTBANK, the Court plainly held that in those cases in which a plaintiff suffers physical damage to some property in which it has a proprietary interest, the rules of Robins Dry Dock" }, { "docid": "2716032", "title": "", "text": "The eleventh circuit affirmed the district court’s dismissal of the suits for failure to state a claim upon which relief could be granted. The Kingston court found the question to be governed by the rule of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), and its Fifth Circuit progeny, Vicksburg Towing Co. v. Mississippi Marine Transport Co., 609 F.2d 176 (5th Cir.1980); Louisville and Nashville Railroad Co. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir.1979); Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). Kingston, 667 F.2d at 35. We agree. Robins stands for the proposition that a’ party may not recover for economic losses not associated with physical damages. Id. The rule’s purpose is to prevent limitless liability for negligence and the filing of law suits of a highly speculative nature. This court noted in Bayou Lacombe that “[whatever the wisdom of the traditional rule of nonliability for negligent acts causing economic loss, Robins reflects the state of law in this circuit.” 597 F.2d at 472. The analysis from Bayou Lacombe is particularly appropriate in this case. The M/V Bayou Lacombe struck a bridge which crossed the Tennessee River. The Louisville and Nashville Railroad was forced to reroute its trains while the bridge was repaired. It sued to recover damages for its loss of the use of the bridge, a right for which it had contracted. This court ruled that negligent interference with a right-of-way privilege that arises out of a contract does not create a cause of action, because such a claim is precluded by Robins. Id. at 474. There is no principled way to distinguish Bayou Lacombe from this case. Here the cause asserted is a negligent interference with a right-of-way that arises out of a public right of use. That the basis for the right to use a way is a contractual right rather than a public one, is a distinction without a difference. The crux of the issue" }, { "docid": "19684115", "title": "", "text": "176 (5th Cir.1980); Louisville & Nashville Railroad Co. v. The Tug M/V BAYOU LACOMBE, 597 F.2d 469 (5th Cir.1979); Dick Meyers Towing Service, Inc. v. United States of America, 577 F.2d 1023 (5th Cir. 1978) (per curiam), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). The appellate court has emphasized that the “critical factor in applying Robins is ‘the character of the interest harmed.’ ” Louisville & Nashville Railroad Co., supra at 473 (quoting Dick Meyers, supra at 1025). These cases have generally involved physical damage to a structure, such as a lock or bridge, owned by one party, and non-physical damages, such as loss of the use of the structure or interference with contractual rights, suffered by a non-owning third party- The Supreme Court distinguished Robins in Aktieselskabet Cuzco v. THE SUCARSECO, 294 U.S. 394, 55 S.Ct. 467, 79 L.Ed. 942 (1935). In that case, the Court required a negligent non-carrying vessel to pay for the share of a general average that cargo had to bear under the bill of lading’s Jason clause. The Court stated that general average expenses were assessable against cargo because cargo participated in a common adventure with the carrying vessel. Id. at 403-04, 55 S.Ct. at 470-71. The general average expenses covered those damages directly attributable to the physical damage of the ship. As the Court explained, “The ‘Jason Clause’ merely distributed a loss for which [the non-carrying vessel] was responsible and in that view that cargo owners are entitled to recover that part of the loss which they have sustained.” Id. at 405, 55 S.Ct. at 471. Thus, the loss, unlike that in Robins and its progeny, was not separate and distinct from the physical harm, instead it was the physical harm suffered by cargo as a common adventurer in the voyage. 8. This Court finds that the facts in this case fall under the Robins rule and, not the rule in THE SUCARSECO. Amoco’s negligent act physically damaged the MASON LYKES but not its cargo. Although cargo could have been injured and was in jeopardy during the collision," }, { "docid": "3697899", "title": "", "text": "liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong.” 275 U.S. at 309, 48 S.Ct. at 135, 72 L.Ed. at 292. We have had occasion to follow and apply the rule enunciated in Robins, including instances in the immediate past. In Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978), we denied recovery to a tugboat operator for damages he claimed resulted from the defendants’ negligence in building and operating a lock on a river. In Louisville and Nashville R. R. Co. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir. 1979), we denied recovery to a railroad for damages resulting from interference with its use of a bridge which the railroad had a contractual right to use. The employees of the defendant had negligently damaged the bridge. The critical factor in the application of the Robins holding in each of these cases was “the character of the interest harmed.” We have been, in such instances, “reluctant to recognize claims based solely on harm to the interest in contractual relations or business expectancy.” An examination of the instant salient facts leaves no doubt that the character of the appellee’s interest harmed is quite different. Unlike the plaintiffs in Robins, Dick Meyers and Louisville and Nashville, the plaintiff here is the owner of the damaged property. It has an insurable interest. It has all of the elements of ownership which attach to a freehold interest, including the right of use, a thing of value. Appellant insists that there is no meaningful difference in the character of the interest in the present case and the interests of the plaintiffs in the cited trilogy. We disagree. The difference is meaningful, real and dis-positive. Appellant also contends that the plaintiff has contracted away its right to the rentals it seeks to recover. Appellant would urge the lease provision as a defense to its accountability for the negligence of its employees. Because the lease provides that the rent abates during the repair period the appellant insists that" }, { "docid": "15773052", "title": "", "text": "fault upon the part of a compulsory pilot aboard the vessel for whose fault the vessel owner would ordinarily not be held liable. See Homer Ramsdale Transp. Co. v. LaCompagnie Generale Transatlantique, 182 U.S. 406, 21 S.Ct. 831, 45 L.Ed. 1155 (1901). The legislative history further observes: Adoption of the bill will not create new causes of action. It merely specifically directs the courts to exercise the admiralty and maritime jurisdiction of the United States already conferred by article III, section 2 of the Constitution and already authorized by the Judiciary acts. Id., at 1900. This observation was echoed by this Court in Louisville & N.R. Co. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir. 1979). In that case, a railroad company brought a claim in admiralty for damages for the loss of the use of a bridge — which the railroad did not own and in which it had no Alabama property interest — negligently struck by a vessel. Although recovery for damages of this kind was seemingly barred under the established rule of maritime law enunciated in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), the railroad company argued that the rule in question was irrelevant under the Admiralty Extension Act which, according to the railroad, permitted recovery for all injuries to property. This Court, in an opinion by Judge Wisdom, rejected this argument finding, “the Act . . . does not create new causes of action; it merely expands the locality rule of admiralty jurisdiction to encompass ‘ship-to-shore’ torts.” Id., at 472, and on the basis of Robins, and our cases following it, held there was no claim for tortious interference with contractual relations. To do so would, in the Court’s view, be the creation of a new cause of action. In sum, we find that the Admiralty Extension Act was intended to eliminate the inequities, and anomalies, resulting from the strict application of the locality rule in admiralty under then existing law. The Act was not intended to grant claimants new substantive rights of recovery" }, { "docid": "3697898", "title": "", "text": "the lease, with the understanding that insurance proceeds might be applied to the repair costs but that any insufficiency would remain the responsibility of the lessee. The lease agreement further provided that during the period of repairs the rental payments would be abated. During the time required for repairs a total of $8,400 of rentals accrued but were not paid. It is this sum for which judgment was granted. Appellant insists that because appellee had contracted for the abatement of the rent during repairs, it does not now have a sufficient, protected property interest, citing Robins, supra. This contention does not survive careful analysis. In Robins a time-charterer of a vessel sued the owner of a dry dock whose employees had negligently damaged the vessel, seeking recovery for damages suffered as a consequence of the unavailability of the vessel on the charter date. In an opinion penned by Justice Holmes the Supreme Court held that “as a general rule, . a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong.” 275 U.S. at 309, 48 S.Ct. at 135, 72 L.Ed. at 292. We have had occasion to follow and apply the rule enunciated in Robins, including instances in the immediate past. In Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978), we denied recovery to a tugboat operator for damages he claimed resulted from the defendants’ negligence in building and operating a lock on a river. In Louisville and Nashville R. R. Co. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir. 1979), we denied recovery to a railroad for damages resulting from interference with its use of a bridge which the railroad had a contractual right to use. The employees of the defendant had negligently damaged the bridge. The critical factor in the application of the Robins holding in each of these cases was “the character of the interest harmed.” We have been, in such instances, “reluctant" }, { "docid": "22588818", "title": "", "text": "a contract right to use. Louisville & Nashville R.R. Co. v. M/V BAYOU LACOMBE, 597 F.2d 469 (5th Cir.1979). We rejected the railroad’s argument that its right to use the damaged bridge was a property right sufficient to support recovery, concluding that whatever its label, recovery was sought for loss of an economic expectancy. Id. at 474. In Vicksburg Towing Co. v. Mississippi Marine Transport Co., 609 F.2d 176 (5th Cir.1980) (Politz, J.), we sustained recovery by an owner of a dock leased to another for damages to the dock caused by defendant’s negligence. We asserted that the distinction between recovery by an owner when his property was damaged and recovery by others, as applied in Robins, Dick Meyers, and M/V BAYOU LACOMBE, was “meaningful, real and dispositive.” Id. at 177. -5- Nor has this circuit been the sole guardian of the Robins Dry Dock principle. Rederi A/B Soya v. Evergreen Marine Corp., 1972 A.M.C. 1555, (E.D.Va.1971), aff'd, 1972 A.M.C. 538 (4th Cir.1972), was a case factually similar to Robins. There the Fourth Circuit adopted the opinion of the district court that had denied on the basis of Robins a time charterer’s claim for profits lost when his leased vessel was negligently damaged. An identical result was reached in Federal Commerce & Navigation Co. v. M/V MARATHONIAN, 528 F.2d 907 (2d Cir.1975), cert. denied, 425 U.S. 975, 96 S.Ct. 2176, 48 L.Ed.2d 799 (1976). In Henderson v. Arundel Corp., 262 F.Supp. 152 (D.Md.1966), aff'd, 384 F.2d 998 (4th Cir.1967), the court applied Robins to deny claims by seamen for wages lost when the vessel on which they worked was negligently damaged in a collision. Courts in the First and Sixth Circuits have applied Robins in similar fashion. See, e.g., Hayes v. Luckenbach S.S. Co., 92 F.Supp. 684 (D.Mass.1950), and Casado v. Schooner Pilgrim, Inc., 171 F.Supp. 78 (D.Mass.1959) (seamen denied recovery of wages lost when vessel was negligently damaged); Complaint of Great Lakes Towing Co., 395 F.Supp. 810 (N.D.Ohio 1974) (dockworkers denied recovery of wages lost when dock was negligently damaged). The court in General Foods Corp. v. United States," }, { "docid": "2133748", "title": "", "text": "goods. In United Textile Workers of Am., AFL-CIO v. Lear Siegler Seating Corp. (“Lear Siegler”), 825 S.W.2d 83 (Tenn.Ct. App.1990), perm. app. denied, the Tennessee Court of Appeals traced the origins of the economic loss rule to Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), noting that in Robins, the “rule was expressed that liability is not legally recognized for indirect economic damages.” Lear Siegler, 825 S.W.2d at 83-84. In Robins, the defendant, a dry dock company, negligently damaged a ship’s propeller while the ship was at dry dock, resulting in a delay in the ship being returned to service. Id., 275 U.S. at 307-08, 48 S.Ct. 134. As a result of the defendant’s negligence, the plaintiff, who was the time charterer of the ship, lost the use of the ship for the period of the delay and sued the defendant in tort for economic losses. Id. The United States Supreme Court reversed the court of appeals, which had allowed the plaintiff to recover, noting that “as a general rule ... a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong. The law does not spread that far.” Id. at 309, 48 S.Ct. 134 (internal citation omitted); see also Lear Siegler, 825 S.W.2d at 83-84. The issue identified by the Tennessee Court of Appeals in Lear Siegler was “whether the policy of the State of Tennessee should permit recovery for indirect economic loss absent personal injury or property damage.” Id., 825 S.W.2d at 83. The plaintiffs, hourly workers at a facility in an industrial park, had brought the action for lost earnings against the defendant, a factory located in the industrial park. Id. Inside the defendant’s factory, the defendant had stacked metal racks next to a propane tank storage area. Id. The metal racks eventually fell into the tank storage area, causing a tank to leak and resulting in the evacuation of the" }, { "docid": "22588868", "title": "", "text": "F.2d at 472.” 706 F.2d at 153 (emphasis added). In Dick Meyers Towing Service, Inc. v. United States, 5 Cir.1978, 577 F.2d 1023, cert. denied, 1979, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455, this Court denied recovery for losses after navigation on the Black Warrior River in Alabama was completely halted for five months by a faulty lock near the Bankhead Dam. Meyers sued for recovery of the loss of towing business sustained as a result of the closing of the river. This Court affirmed the district court’s denial of recovery, relying on Robins and Kaiser Aluminum & Chemical Corp. v. Marshland Dredging Co., 5 Cir.1972, 455 F.2d 957: “The law has traditionally been reluctant to recognize claims based solely on harm to the interest in contractual relations or business expectancy____ In consequence, as stated in Kaiser Aluminum, a plaintiff may not recover for interference with his contractual relations unless he shows that the interference was intentional or knowing. While the wisdom of that traditional reluctance is open to debate, the rule based upon it is too well-settled to be overturned by a panel of this court.” 577 F.2d at 1025. Finally, in Louisville and Nashville Railroad Co. v. M/V Bayou Lacombe, 5 Cir.1979, 597 F.2d 469, L & N Railroad sought recovery for loss of use of a railroad bridge damaged by the Bayou Lacombe. Although L & N did not own the bridge, it sought to place itself in the same position as the owner of the bridge through its contractual agreement with the bridge’s actual owner. The Court found that the agreement placed no ownership interest in the L & N. Therefore, under Robins, as construed by this Court, L & N had no right to recover. The damages allegedly sustained were losses of an economic expectancy and not proprietary losses. Id. at 474. The enduring appeal of Robins, despite its inapplicability to cases such as this one, seems to spring from the administrative convenience of a “conspicuous bright-line rule” and from “the virtue of predictability”. Majority opinion at 1029. In a frequently cited extension" } ]

[ { "docid": "23215252", "title": "", "text": "the difficulty with this case: the district court’s multiple decisions, responding to piecemeal submissions by the petitioner and the government, illustrate both the risk in summarily adjudicating of § 2255 claims on an unamplified “paper” record, and the need to advise pro se petitioners, early in the proceedings, of the factual specificity required to avoid dismissal of their § 2255 petitions. Recognizing the potentially unfair consequences of summary dismissal of a habeas petition, § 2255 requires a “prompt hearing” on the movant’s claims, except where “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. The statute also provides that the court, after granting a hearing, may decide the motion “without requiring the production of the prisoner at the hearing.” Id.; see also Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) (observing that the “prompt hearing” requirement does not “imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, con-clusory, or palpably incredible his allegations may be”). The variety of fact-finding approaches taken by courts — from expansion of the record by means of affidavits and other written submissions or through discovery, to full-blown hearings with live testimony by the movant and other witnesses — reflects the fact-sensitive flexibility of § 2255 as applied to prisoners’ habeas motions. Although this flexibility is consistent with the “sound discretion” of a district court to determine the kind of evidentiary hearing, if any, to require in a case, Sanders v. United States, 373 U.S. 1, 21, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), it also suggests that once the court has determined that the nature of the prisoner’s allegations precludes summary adjudication, it should ensure that a Ml record is developed on disputed issues and that a live testimonial hearing be included as part of that process when warranted. A prisoner not trained in the law or familiar with" } ]

[ { "docid": "3495394", "title": "", "text": "to no relief; and it is therefore ordered that his motion to vacate the judgment and sentence be, and the same hereby is, denied.” McDowell argues to us that he should have been permitted to testify and produce witnesses to support his charges. We are satisfied that the district judge’s action was proper and gave McDowell’s petition adequate consideration. His review of the files and records of the court, including the transcript certified as correct by the court’s official reporter, and the judge’s own recollection of the events of the trial at which he presided, gave him adequate information upon which to render a decision. The distl'ict judge had the right to rely upon the court’s own record and the court reporter’s transcript. Johnston v. United States, 10 Cir., 292 F.2d 51. Neither United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232, nor Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473, require a holding that McDowell should have been permitted to attempt support of his fantastic charges by a personal appearance in court. Rather, we feel that this case presents a situation contemplated by Justice Stewart’s language in the Machibroda case: “What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense” (368 U.S. 495, 82 S.Ct. 514). The statute itself (Title 28, § 2255) expressly provides that “a court may entertain and determine such motion without requiring the production of the prisoner at the hearing.” We think, also, that the Machibroda case emphasizes the propriety of the district judge’s action in the case at bar. The Supreme Court there pointed out that Machibroda’s petition related “primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light. Nor" }, { "docid": "23217193", "title": "", "text": "to withdraw their guilty pleas prior to sentencing without conducting an evidentiary hearing. Given our disposition of Fountain’s other issue on appeal we limit our discussion here solely to defendant Granger. Finding no merit to his contentions we affirm his conviction. Two days prior to sentencing, both defendants moved pursuant to Federal Rule of Criminal Procedure 32(d) to withdraw their pleas of guilty. At the sentencing hearing the presiding judge, after briefly discussing the nature of Granger’s contentions, informed both defendants that she was satisfied with her inquiries at the Rule 11 hearing concerning the voluntariness of the pleas and denied the motions without conducting an evidentiary hearing. Granger contends that an evidentiary hearing should be granted as a matter of course in response to a presentence motion to withdraw a plea. He further contends that the motion he filed alleged sufficient facts to require a hearing. A defendant does not get an evidentiary hearing as a matter of right whenever he withdraws his guilty plea. Thompson, 680 F.2d at 1151. While Granger is correct in stating that evidentiary hearings should be liberally granted prior to sentencing, see United States v. Russell, 686 F.2d 35, 38 (D.C.Cir.1982), this court requires that a hearing be considered only when a “fair and just reason” for withdrawal of the plea is presented. Thompson, 680 F.2d 1152. The courts need not conduct a hearing when the allegations contained in the motion to withdraw the plea are mere conclusions or are inherently unreliable. See Moody v. United States, 497 F.2d 359, 362 (7th Cir.1974); United States v. Crooker, 729 F.2d 889, 890 (1st Cir.1984). See also Marchibroda v. United States, 368 U.S. 487, 495-96, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962): What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to" }, { "docid": "23346407", "title": "", "text": "which the district court would be able to receive and evaluate submissions from the parties of circumstances, existing at the time of the original sentencing, that .might have materially altered the original sentence had the Guidelines been only advisory. . For the view that uncertainty as to outcome leaves a defendant without a remedy, the ' Eleventh Circuit drew support from the Supreme Court’s decision in United States v. Dominguez Benitez, 542 U.S. 74, -, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004). See Rodriguez, 398 F.3d at 1302, 2005 WL 272952, at *11. That decision, applying plain error analysis in the context of an error in accepting a guilty plea, ruled that a defendant must show a reasonable probability that, but for the error, he would not. have entered the guilty plea. See Dominguez Benitez, 542 U.S. at -, 124 S.Ct. at 2336. Obviously, courts cannot rely conclusively on a defendant who wants to withdraw a guilty plea for the estimate of what the defendant would have done in the absence of error in accepting the plea. On a clear record, the appellate court will make the estimate, as the Supreme Court did in Dominguez Benitez, but, interestingly, it is not uncommon, where the record is uncertain, for appellate courts to remand so that the estimate can be made by the district court, with the traditionally more comprehensive view of the circumstances that prevailed when the plea was entered. See United States v. Colon-Torres, 382 F.3d 76, 91 (1st Cir.2004); United States v. Graves, 374 F.3d 80, 85 (2d Cir.2004). United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), additionally relied on by the Eleventh Circuit, also involved the application of plain error analysis to an error in accepting a guilty plea. . In unpublished opinions (unavailable for citation to the Ninth Circuit or by courts of that Circuit, see 9th Cir. R. 36-3), panels of the Ninth Circuit have also vacated sentences that violate the Sixth Amendment under Booker and remanded for resentencing. See United States v. Reynolds, 121 Fed.Appx. 247 (9th" }, { "docid": "6108274", "title": "", "text": "petitioner, and the manner in itself used to get the money from Anna K. Munro, was in no way and could have in no way been considered as (force, violence nor intimidation)' (such 3-words being the meat so to speak, of sec. 2113(a) title 18.” In his brief, appellant states that on the day of his arrest, and after a Sergeant of the Los Angeles Police Department had warned him of his rights (and before the alleged promises of the FBI agents), “I told agent Tuggy I had robbed the bank.” In the probation report, appears the following: “Defendant’s statement. Defendant states he was under financial pressure and became discouraged. He related that he decided he would steal and, if necessary, pay the consequences, rather than to see his children go without food.” Later there appears the following: “Mr. Austin states that he did have several hundred dollars worth of bill [sic] previous to the instant offense. After robbing the bank of $630.00, he proceeded to pay his creditors with the bulk of this money.” In Sanders v. United States, 373 U.S. 1, 21, 83 S.Ct. 1068, 1080, 10 L.Ed.2d 148 (1962) the Court stated “* * * we think it clear that the sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing.” In Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), the Court stated: “What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. Indeed, the statute itself recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner. (emphasis added). If there ever was a case where the trial court might use its discretion" }, { "docid": "17834470", "title": "", "text": "to appear at the hearing the court had the following to say, 368 U.S. 495, 82 S.Ct. 510: “What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. Indeed, the .statute itself recognizes that there are times when allegations of fact outside the record can be fully investigated without requiring the personal presence of the prisoner. Whether the petition in the present case can appropriately be disposed of without the presence of the petitioner at the hearing is a question to be resolved in the further proceedings in the District Court.” The District Judge in the pending case did not make his decision without a hearing but the sufficiency of the hearing and the findings are nevertheless open to examination. The Judge made the specific finding that the defendant was not induced by his attorney at the arraignment to enter the plea of guilty upon the expectation of thereby getting a lighter sentence and he found that the testimony of the Agent that he had bought narcotic drugs from the defendant was true but he did not find specifically that the Agent had not threatened the defendant with severe punishment if he did not plead guilty. The Judge did find that no violation of the prisoner’s Constitutional rights had taken place, basing his findings in part upon the records of the court, but the records of the court are admittedly incomplete. It is provided by 28 U.S.C.A. § 753(b) that the court reporter shall record all proceedings in criminal cases had in open court. This was not done in the pending case. All that appears is that the defendant was arraigned by the United States Attorney and that a plea was entered for him by his attorney, that the Narcotics Agent testified in" }, { "docid": "21476991", "title": "", "text": "a sentence that exceeded Ms expectation. Counsel argues that the district judge’s failure to follow Fed.R.Crim.P. ll(b)(l)(N) nonetheless allows his client to start over. Rule ll(b)(l)(N) requires the judge to inform the defendant orally about “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” The district judge failed to comply with this rule. Neither the prosecutor nor defense counsel called the omission to the judge’s attention, then or later. United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), holds that the plain-error standard governs when a defendant who did not move to withdraw his guilty plea in the district court argues on appeal that the plea was defective because of a district judge’s failure to comply with Rule 11(b)(1). See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Vonn also holds that, when conducting plain-error review, a court of appeals must consult the whole record and is not limited to the transcript of proceedings in open court. 535 U.S. at 74-76, 122 S.Ct. 1043. United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), adds that, to demonstrate plain error, “a defendant must show a reasonable probability that, but for the error, he would not have entered the plea.” See also United States v. Arenal, 500 F.3d 634, 637-39 (7th Cir.2007). Sura has not shown that, but for the district judge’s omission, “he would not have entered the plea.” Indeed, Sura has never asserted this, let alone “shown” it. Nor does he maintain that district judges’ compliance with Rule ll(b)(l)(N), which became effective in December 1999, leads a non-trivial fraction of defendants to balk and refuse to plead guilty. The Committee Note explaining the amendment says that the advice is designed to make a clear record and ensure that pleas are voluntary; but for a defendant who knows about the waiver before appearing in court, a reminder from the bench will not affect the plea. Before assuming (as my colleagues do) that a" }, { "docid": "17834469", "title": "", "text": "213 F.2d 230; United States v. Sehon Chinn, D.C.S.D.W.Va., 74 F.Supp. 189, aff’d without discussion of the point, 4 Cir., 163 F.2d 876. But the allegation that the defendant was threatened with severe punishment by- the Agent of the United States unless he admitted his guilt, if true, would furnish sound ground for vacating the sentence in a collateral proceeding. The importance of complying with Rule 11 is emphasized in Machibroda v. United States, supra. In that case the court held that the District Judge erred in dismissing the petition of the prisoner in a § 2255 case without a hearing, relying upon the affidavit of an Assistant United States Attorney denying the allegations that his plea of guilty was induced by promises and coercion. It was pointed out that a conviction based upon such a plea is open to collateral attack and, hence, it was error upon the part of the District Judge to decide controverted issues of fact without notice to the defendant and without a hearing. With respect to allowing the prisoner to appear at the hearing the court had the following to say, 368 U.S. 495, 82 S.Ct. 510: “What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. Indeed, the .statute itself recognizes that there are times when allegations of fact outside the record can be fully investigated without requiring the personal presence of the prisoner. Whether the petition in the present case can appropriately be disposed of without the presence of the petitioner at the hearing is a question to be resolved in the further proceedings in the District Court.” The District Judge in the pending case did not make his decision without a hearing but the sufficiency of the hearing and the findings are nevertheless open" }, { "docid": "19408300", "title": "", "text": "irregularity, or variance that does not affect substantial rights must be disregarded.\" Rule 11(h), as just noted, was designed to make it clear that Rule 11 errors are not excepted from that general Rule. Advisory Committee's 1983 Note 749. Rule 52, in addition to stating the \" harmless-error rule\" in subsection (a), also states, in subsection (b), the \" plain-error rule,\" applicable when a defendant fails to object to the error in the trial court. Rule 52(b) states: \"A plain error that affects substantial rights may be considered even though it was not brought to the [trial] court's attention.\" When Rule 52(a)'s \"harmless-error rule\" governs, the prosecution bears the burden of showing harmlessness. See United States v. Vonn, 535 U.S. 55, 62, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). When Rule 52(b) controls, the defendant must show that the error affects substantial rights. Ibid. In two cases, United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), and United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), this Court clarified that a Rule 11 error may be of the Rule 52(a) type, or it may be of the Rule 52(b) kind, depending on when the error was raised. In Vonn, the judge who conducted the plea hearing failed to inform the defendant, as required by Rule 11, that he would have \"the right to the assistance of counsel\" if he proceeded to trial. See Fed. Rule Crim. Proc. 11(c)(3) (2000). The defendant first objected to the omission on appeal. We addressed the question \"whether a defendant who lets Rule 11 error pass without objection in the trial court must carry the burdens of Rule 52(b) or whether even the silent defendant can put the Government to the burden of proving the Rule 11 error harmless.\" 535 U.S., at 58, 122 S.Ct. 1043. The Defendant in Vonn had urged that \"importation of [Rule 52(a)'s] harmless-error standard into Rule 11(h) without its companion plain-error rule was meant to eliminate a silent defendant's burdens under ... Rule 52(b).\" Id., at 63, 122 S.Ct." }, { "docid": "22830970", "title": "", "text": "United States, 234 F.3d 820, 825 (2d Cir.2000) (“[Ajctions taken by counsel outside the presence of the trial judge ... [can] not ordinarily be resolved by him without ... a hearing.”). The language of Section 2255 therefore indicates that summary dismissal of Chang’s petition would have been inappropriate. We therefore disagree with Underwood and Siciliano to the extent they would permit summary dismissal. However, Chang’s claim was not summarily dismissed by the district court. At the request of the court, the record was supplemented by a detailed affidavit from trial counsel credibly describing the circumstances concerning appellant’s failure to testify. We believe that with that submission the record was sufficient to support dismissal of the petition. The Supreme Court has held that, although a hearing may be warranted, that conclusion does not imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. Indeed, the statute itself recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner. Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). In so holding, the Court relied upon Section 2255 itself, which expressly provides that the “court may entertain and determine such motion without requiring the production of the prisoner at the hearing.” 28 U.S.C. § 2255; see Machibroda, 368 U.S. at 495 n. 4, 82 S.Ct. 510. The Fourth and Tenth Circuits have agreed. See Luse v. United States, 326 F.2d 338, 33-40 (10th Cir.1964) (quoting Machibroda and adding: “This does not mean that a prisoner can be prevented from testifying in support of a substantial claim where his testimony would be material. However, we think it clear that the sentencing court has discretion to ascertain whether the claim is substantial before granting a full" }, { "docid": "23217194", "title": "", "text": "in stating that evidentiary hearings should be liberally granted prior to sentencing, see United States v. Russell, 686 F.2d 35, 38 (D.C.Cir.1982), this court requires that a hearing be considered only when a “fair and just reason” for withdrawal of the plea is presented. Thompson, 680 F.2d 1152. The courts need not conduct a hearing when the allegations contained in the motion to withdraw the plea are mere conclusions or are inherently unreliable. See Moody v. United States, 497 F.2d 359, 362 (7th Cir.1974); United States v. Crooker, 729 F.2d 889, 890 (1st Cir.1984). See also Marchibroda v. United States, 368 U.S. 487, 495-96, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962): What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. Even acknowledging that a less stringent standard is to be applied to the granting of the hearing as opposed to the determination with regard to the actual motion, to require an evidentiary hearing based on Granger’s allegations would read the common sense element out of Marchibroda and make pre-sentence hearing a matter of right. The movant must raise some significant questions concerning the voluntariness or general validity of the plea to justify the initiation of further evidentiary proceedings. The motion contains nothing but bare bones allegations of mistreatment, involuntariness and innocence. The fact that Granger’s and Fountain’s motions were literally identical is a factor which further establishes that the documents were devoid of specific evidence relating to individual circumstances that might support either defendant’s claim. Judge Crabb questioned Granger in great detail at the Rule 11 hearing concerning all the allegations subsequently raised in the motion to withdraw the plea. Granger’s motion failed to provide any “fair and just” reason for allowing the withdrawal of the plea. On these facts an" }, { "docid": "23265628", "title": "", "text": "that he did not raise in the district court, that claim is reviewable only for plain error. See, e.g., United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (a previously “silent defendant” making a Rule 11 challenge “has the burden to satisfy the plain-error rule”). To satisfy the plain-error standard, the defendant must demonstrate, inter alia, “that (1) there was error, (2) the error was ‘plain,’ [and] (3) the error prejudicially affected his ‘substantial rights.’ ” United States v. Flaharty, 295 F.3d 182, 195 (2d Cir.) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)), cert. denied, 537 U.S. 936 (2002). “And because relief on plain-error review is in the discretion of the reviewing court, a defendant has the further burden to persuade the court that the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’ ” Vonn, 535 U.S. at 63, 122 S.Ct. 1043 (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770 (other internal quotation marks omitted)). In assessing the likely effect of a Rule 11 error, we are to examine the entire record. See, e.g., Vonn, 535 U.S. at 59, 122 S.Ct. 1043; Maher, 108 F.3d at 1521; United States v. Parkins, 25 F.3d 114, 118 (2d Cir.), cert. denied, 513 U.S. 1008, 115 S.Ct. 530, 130 L.Ed.2d 433 (1994). In order to demonstrate that a Rule 11 error affected his substantial rights, a defendant must show “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). In determining whether the defendant has made such a showing, we consider, inter alia, “any record evidence tending to show that a misunderstanding was inconsequential to a defendant’s decision” to plead guilty, as well as the “overall strength of the Government’s ease.” Id. at 84-85, 124 S.Ct. 2333. In his brief on appeal, Torrellas argues principally that the district court failed to comply with Rule 11(b) because it elicited only monosyllabic “Yes” or" }, { "docid": "20510820", "title": "", "text": "reason” only before the sentence is imposed. Fed. R.Crim.P. 11(d)(2)(B); see also id. 11(e) (“After the court imposes sentence, ... the plea may be set aside only on direct appeal or collateral attack.”). Thus, we might chalk this up as one more error on the growing list of the sentencing judge’s missteps. It is significantly less clear, however, that-once considered-Sevilla’s motion would consequently be subject only to plain-error review. The Supreme Court has explained that Rule 11 plays an important role in separating “meritorious second thoughts ... and mere sour grapes over a sentence once pronounced.” United States v. Vonn, 535 U.S. 55, 72, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (discussing Rule 32(e), which was later moved to Rule 11). Vonn, however, dealt with a more typical case, in which the claim was first raised on appeal, and its holding was limited to those facts. See id. at 71-74, 122 S.Ct. 1043 (holding that a claim brought only on direct appeal is subject to plain error review); see also United States v. Borrero-Acevedo, 533 F.3d 11, 15 (1st Cir.2008) (citing Vonn, 535 U.S. at 58-59, 122 S.Ct. 1043) (reasoning that a Rule 11 issue raised for the first time on appeal was reviewed for plain error); United States v. Jimenez, 512 F.3d 1, 3 (1st Cir.2007) (same). . Were there any question that remand is necessary due to the sentencing procedures before the district court, I also note that where the oral and written sentences materially conflict, the oral generally controls. See United States v. Meléndez-Santana, 353 F.3d 93, 100 (1st Cir.2003) (citations omitted), overruled, in part, on other grounds by United States v. Padilla, 415 F.3d 211 (1st Cir.2005). Our court has previously held that some deviations in the terms of supervised release or restitution payments, where the defendant was on notice of those terms, were not material. See United States v. Ortiz-Torres, 449 F.3d 61, 74 (1st Cir.2006); United States v. Vega-Ortiz, 425 F.3d 20, 22-23 (1st Cir.2005); United States v. Ferrario-Pozzi, 368 F.3d 5, 9 (1st Cir.2004). We have never gone nearly so far, however, as" }, { "docid": "15364890", "title": "", "text": "States, — U.S. —, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Rule 11 is “meant to ensure that a guilty plea is knowing and voluntary,” United States v. Vonn, 535 U.S. 55, 58, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), and the district court must follow a certain protocol designed to achieve that end. See United States v. Gray, 581 F.3d 749, 752 (8th Cir.2009). The Supreme Court has established that when a defendant pleads guilty without proper advice under Rule 11, he may appeal the conviction under at least a plain error standard, Vonn, 535 U.S. at 59, 122 S.Ct. 1043, with relief potentially available where the defendant can show “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Although a claim of error under Rule 11 is not the equivalent of a due process challenge to the plea, id. at 83, 84 n. 10, 124 S.Ct. 2333, a district court’s failure to comply with Rule 11 calls into question the knowing and voluntary nature of a plea, and thus its validity. See Vonn, 535 U.S. at 73 n. 10, 122 S.Ct. 1043; United States v. Garcia, 587 F.3d 509, 520 (2d Cir.2009) (“A challenge to the factual basis of a plea is ... equivalent to a challenge to its voluntariness.”). Vonn and Dominguez Benitez establish that a plain error under Rule 11 may justify reversal of a conviction that was based on a guilty plea. Guilty pleas accepted after an imperfect Rule 11 colloquy, therefore, do not “waive” all errors under Rule 11. Having reviewed the matter anew, we see no good reason to treat alleged violations of Rule 11(b)(1)— concerning advise and questioning of the defendant — differently from alleged violations of Rule 11(b)(3) — concerning adequacy of a factual basis — when considering the availability of appellate review. If a district court accepts a guilty plea based on a set of facts that plainly and obviously does not constitute a federal offense, but" }, { "docid": "22894088", "title": "", "text": "1030, 1031 (5th Cir.1984). Historically, any failure in Rule 11 procedures surrounding a guilty plea was considered to be irreparable error warranting automatic reversal. In 1983, however, Rule 11(h) was promulgated, and the Supreme Court has since shown reluctance to overturn pleas unless prejudice can be shown on the record as a whole. See United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1054-55, 152 L.Ed.2d 90 (2002); United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004). Cf. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 2087-88, 60 L.Ed.2d 634 (1979) (challenge under 28 U.S.C. § 2255). Because Castro-Trevino objects to the Rule 11 error for the first time on appeal, this court must review for plain error only. Vonn, 122 S.Ct at 1046; Ma-rek, 238 F.3d at 315. Under plain error review, Castro-Trevino bears the burden to show that (1) there is an error; (2) the error is clear and obvious; and (3) the error affects his substantial rights. Ma-rek, 238 F.3d at 315. The relief for error is tied to a prejudicial effect, so the error must have had a “ ‘substantial and injurious effect or influence in determining the ... verdict.’ ” Dominguez Benitez, 124 S.Ct. at 2335 (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); Fed.R.Crim.P. 52(b). Further, even if Castro-Trevino establishes clear error, we will not vacate the judgment unless the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Marek, 238 F.3d at 315; see also United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 1778-79, 123 L.Ed.2d 508 (1993). To show prejudice, Castro-Trevino “must show a reasonable probability that, but for the error, he would not have entered the plea.” Dominguez Benitez, 124 S.Ct. at 2336. Because both parties agree that the record lacks a factual basis for Castro-Trevino’s guilty plea, the first two prongs of the plain error review are satisfied. In short, contrary to the charge in the indictment to which Castro-Trevino pleaded guilty, the facts are that he" }, { "docid": "23020355", "title": "", "text": "file his motion for reconsideration, not because of his lack of knowledge of procedure. Accordingly, the district court did not abuse its discretion in concluding that Oliver waived his argument that the paper found in his clothes pocket should be suppressed. See Knezek, 964 F.2d at 397. B. Appeal Waiver Oliver contends that the district court failed to comply with the requirements of Federal Rule of Criminal Procedure ll(b)(l)(N), rendering his appeal waiver ineffective. Specifically, Oliver complains that the district court’s description of the appeal waiver was confusing and that the judge failed to ensure that Oliver understood the terms of the plea agreement, particularly the exceptions. Rule ll(b)(l)(N) requires the district court, before accepting a plea of guilty, to address the defendant personally in open court and to make sure the defendant understands the terms of any plea agreement provision waiving the right to appeal or to attack the sentence collaterally. Fed.R.CrimP. ll(b)(l)(N). Because Oliver did not specifically object to the district court’s plea colloquy as it pertains to Rule ll(b)(l)(N), this court reviews for plain error. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Reyna, 358 F.3d 344, 354 (5th Cir.) (Jones, J., concurring). The plain error inquiry requires Oliver to demonstrate that his substantial rights were affected by the district judge’s alleged failure to explain the terms of the appeal waiver adequately. United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). When reviewing under a plain error standard, this “court may consult the whole record when considering the effect of any error on substantial rights.” Vonn, 535 U.S. at 59, 122 S.Ct. 1043. Moreover, to justify reversal for a district court’s error in a Rule 11 admonishment, the defendant “must show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). In addition, this court may correct a plain error only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”" }, { "docid": "20510819", "title": "", "text": "alter a judgment to benefit a nonappealing party.... [I]t takes a cross-appeal to justify a remedy in favor of an appellee.”). While Sevilla's sentence is vacated for, essentially, lack of notice, future defendants will not be so fortunate. I hope the rationale of the majority’s opinion does not create a chilling effect such that future defendants are made fearful of bringing even meritorious claims on appeal. . At Sevilla's January 25, 2012, sentencing hearing, the judge did not impose a life sentence on Count 2. Rather, this term was first imposed in writing on January 26, 2012. Therefore, Sevilla had no reasonable opportunity to discover and raise the Rule 11 error during the initial sentencing hearing or prior to the sentence’s imposition. . When Sevilla queried whether the court’s ability to withdraw the plea was impacted by a sentence already having been imposed, the sentencing judge responded, ”[I]t doesn’t matter.” That proclamation ignores the plain text of Federal Rule of Criminal Procedure 11(d), which allows district courts to withdraw pleas for \"any fair and just reason” only before the sentence is imposed. Fed. R.Crim.P. 11(d)(2)(B); see also id. 11(e) (“After the court imposes sentence, ... the plea may be set aside only on direct appeal or collateral attack.”). Thus, we might chalk this up as one more error on the growing list of the sentencing judge’s missteps. It is significantly less clear, however, that-once considered-Sevilla’s motion would consequently be subject only to plain-error review. The Supreme Court has explained that Rule 11 plays an important role in separating “meritorious second thoughts ... and mere sour grapes over a sentence once pronounced.” United States v. Vonn, 535 U.S. 55, 72, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (discussing Rule 32(e), which was later moved to Rule 11). Vonn, however, dealt with a more typical case, in which the claim was first raised on appeal, and its holding was limited to those facts. See id. at 71-74, 122 S.Ct. 1043 (holding that a claim brought only on direct appeal is subject to plain error review); see also United States v. Borrero-Acevedo, 533" }, { "docid": "6108275", "title": "", "text": "In Sanders v. United States, 373 U.S. 1, 21, 83 S.Ct. 1068, 1080, 10 L.Ed.2d 148 (1962) the Court stated “* * * we think it clear that the sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing.” In Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), the Court stated: “What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. Indeed, the statute itself recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner. (emphasis added). If there ever was a case where the trial court might use its discretion in determining whether to afford a convicted defendant an evidentiary hearing, this is that case. The appellant admits the following: (1) Shortly following the robbery, and prior to apprehension, and without any governmental coercion or influence of any kind, he voluntarily called the FBI and told them he had robbed the bank; (2) On the date of his arrest after being warned of his rights, and before the alleged promises by the FBI agents, he told an FBI agent he robbed the bank; (3) At the time of his plea of guilty, he assured the court that his plea was free and voluntary, and that no promises or threats had been made; (4) He admitted the robbery to the probation officer; (5) He made no claim of promises at the time of sentencing; (6) In his § 2255 petition, he set forth how he committed the bank robbery, and in substance all the elements of the offense. Sanders, supra, calls attention to the expense and risk of returning prisoners for § 2255 hearings. Had a" }, { "docid": "21191115", "title": "", "text": "outset with the question of whether Puckett was entitled to a hearing on his motion under the rule announced by the Supreme Court in Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473. In that case the Court said (368 U.S. at page 494, 82 S.Ct. at page 513): “We think the District Court did not proceed in conformity with the provisions of 28 U.S.C. § 2255 [28 U.S.C.A. § 2255], when it made findings on controverted issues of fact without notice to the petitioner and without a hearing. * * * The statute requires a District Court to ‘grant a prompt hearing’ when such a motion is filed, and to ‘determine the issues and make findings of fact and conclusions of law with respect thereto’ unless ‘the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ This was not a case where the issues raised by the motion were conclusively determined either by the motion itself or by the ‘files and records’ in the trial court. * * *» However, the Supreme Court in Machibroda also stated (368 U.S. at pages 495 and 496, 82 S.Ct. at page 514): “What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. * * * “There will always be marginal cases, and this case is not far from the line. But the specific and detailed factual assertions of the petitioner, while improbable, cannot at this juncture be said to be incredible. If the allegations are true, the petitioner is clearly entitled to relief. Accordingly, we think the function of 28 U.S.C. § 2255 [28 U. S.C.A. § 2255] can be served in this case only by affording the hearing which its" }, { "docid": "23656726", "title": "", "text": "(internal quotation marks and citation omitted). In contrast, the Defendants contend that a district court’s participation in plea negotiations constitutes a structural error justifying reversal even if a defendant cannot show prejudice. See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (discussing various structural errors). A court’s participation in plea negotiations does have some parallels to structural defects recognized by the Supreme Court, like the denial of the right to an impartial judge. However, after careful review of Rule 11 itself and the eases interpreting it, we believe plain error review (or, if an objection has been lodged in the district court, harmless error review) more fully accords with the text of the rule and with precedent. First, Rule 11(h) itself provides that “[a] variance from the requirements of this rule is harmless error if it does not affect substantial rights.” Fed. R.Crim. Pro. 11(h). Moreover, in United States v. Vonn, 535 U.S. 55, 59-62, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), the Supreme Court seemed to reject the view that a Rule 11 error could constitute structural error, see id. at 66-71, 122 S.Ct. 1043; rather the court indicated that all forfeited Rule 11 errors were subject to plain error review. See id. at 59, 122 S.Ct. 1043. (“We hold that a silent defendant has the burden to satisfy the plain-error rule and that a reviewing court may consult the whole record when considering the effect of any error on substantial rights.”). See also United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2336, 159 L.Ed.2d 157 (2004) (“Because the claim of Rule 11 error was not preserved by timely objection, the plain error standard of Rule 52(b) applies.”); United States v. Martinez, 277 F.3d 517, 525 (4th Cir.2002) (holding pre-Vonn that “[p]lain error analysis is the proper standard for review of forfeited error in the Rule 11 context.”). In the wake of Vonn, we have indicated that a contention like the one at issue here—that the district court impermissibly participated in plea negotiations—is not structural error, but rather is subject" }, { "docid": "22149728", "title": "", "text": "2004) requires Murdock to show a reasonable probability that, but for the Rule 11 violation by the district court, he would not have entered a plea of guilty. The Court in Dominguez Benitez held “that a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea.” 542 U.S. at-, 124 S.Ct. at 2340 (emphasis added). We decline to adopt the government’s view of this issue, and instead conclude that Dominguez Benitez is inapplicable here because Murdock is not seeking to reverse his conviction, but merely to void the appellate waiver provision in order to challenge his sentence. See United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir.2004) (“Indeed, Arellano does not appeal his conviction. Cf. United States v. Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.E.2d 157 (2004). He only appeals from his sentence.”) We therefore will not require that Murdock show that, but for the district court’s failure to discuss the appellate waiver provision of the plea agreement, he would not have pleaded guilty. Instead, we adhere to the rule set forth in United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), which instructs us to review violations of Rule 11 for plain error if the defendant did not object before the district court. A defendant bears the burden of proof on plain error review, id. at 62, 122 S.Ct. 1043, and must show that there is “1) error, 2) that is plain, and 3) that affects substantial rights. If all three conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if 4) the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citations and internal quotation marks omitted). C. Whether the district court’s failure to discuss the appellate waiver provision with Murdock" } ]

[ { "docid": "22673029", "title": "", "text": "the meaning of Phillips Chemical Co. v. Dumas Independent School Dist., supra. 437 F. Supp., at 365-366 (Kilkenny, J., dissenting). We noted probable jurisdiction. 436 U. S. 916 (1978). Because we find that the constitutional question presented by this appeal was determined adversely to the United States in a prior state proceeding, we reverse on grounds of collateral estoppel without reaching the merits. II A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a “right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies . . . Southern Pacific R. Co. v. United States, 168 U. S. 1, 48-49 (1897). Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.Cromwell v. County of Sac, 94 U. S. 351, 352 (1877); Lawlor v. National Screen Service Corp., 349 U. S. 322, 326 (1955); 1B J. Moore, Federal Practice ¶ 0.405 [1], pp. 621-624 (2d ed. 1974) (hereinafter IB Moore); Restatement (Second) of Judgments § 47 (Tent. Draft No. 1, Mar. 28, 1973) (merger) ; id., §48 (bar). Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Parklane Hosiery Co. v. Shore, 439 U. S. 322, 326 n. 5 (1979); Scott, Collateral Estoppel by Judgment, 56 Harv. L. Rev. 1, 2-3 (1942); Restatement (Second) of Judgments § 68 (Tent. Draft No. 4, Apr. 15, 1977) (issue preclusion) . Application of both doctrines is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions. Southern Pacific R. Co., supra, at 49; Hart Steel Co. v. Railroad Supply Co., 244 U. S. 294, 299 (1917). To preclude parties from contesting matters that they have had a full and" } ]

[ { "docid": "23600962", "title": "", "text": "to a judgment as a matter of law that the debt arising from Order and Judgment entered in the district Court is nondischargeable in the Debtor’s bankruptcy pursuant to 11 U.S.C. § 523(a)(2), (4) and (6). The Plaintiffs noted in their motion that no oral evidence or trial was necessitated by the District Court in that the parties stipulated to certain facts (Exhibit “C” to Plaintiffs’ Motion), and that the Debtor never responded to certain requests for admissions which are deemed admitted pursuant to Fed.R.Civ.P. 36 (Exhibits “D”, “E”, “F” and “G” to Plaintiffs’ motion). Nevertheless this case was submitted on the merits. However, even though the District Court judgment was not a default judgment it does not have res judicata (claims preclusion) effect in a nondischargeability adversary proceeding in this Court. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); In re Rudd, (.Estate of David Schubert Deceased, and David Schubert v. Rudd, 104 B.R. 8, 10-22 (Bankr.N.D.Ind.1987). However, the Supreme Court in Brown v. Felsen, in ruling that res judicata did not preclude the bankruptcy court from going behind a prior state court judgment to determine if a debt is nondischargeable stated in a footnote that collateral estoppel should be applied if the state court’s factual findings were based on standards identical to those used by the bankruptcy court in its dischargeability determination. The court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit, [citations omitted] If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar litigation of those issues in bankruptcy court. Brown, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. A majority of the courts have adhered to' the foregoing analysis by the Supreme Court and applied collateral" }, { "docid": "4680974", "title": "", "text": "106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and grant summary judgment where there is no such issue and the movant is entitled to judgment as a matter of substantive law. Hamilton v. Smith, 773 F.2d 461 (2d Cir.1985). The moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which entitle him to judgment as a matter of law. Katz v. Goodyear Tire & Rubber Company, 737 F.2d 238, 244 (2d Cir.1984); See 2 J. Moore, A. Vestal, P, Kurkland, Moore’s Federal Practice and Procedure § 17.10 at 17-34 (2d ed. 1987). The plaintiff argues that Justice Buell’s legal and factual conclusions are res judi-cata and that the debtor is collaterally es-topped from having the issues relitigated in a determination of dischargeability. The debtor asserts that fraud and defalcation were never pleaded in the state court action and therefore these issues were not litigated, thereby rendering the state court decision nonpreclusive and requiring litigation of the applicable facts in the bankruptcy court. Therefore, the debtor argues that there are material issues of fact which exist that must be litigated which preclude summary judgment. The doctrine of res judicata, or claim preclusion, is distinguishable from the principle of collateral estoppel in that res judicata forecloses all that which might have been litigated previously by the parties, whereas collateral estoppel treats as final only those issues actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). In Brown v. Felsen, 442 U.S. 127, 139, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979), in dealing with the principle of res judicata, the Supreme Court noted in footnote 10 that if a state court determined factual issues in a state law question, using standards identical to those of § 17 of the former Bankruptcy Act (now 11 U.S.C. § 523), the principle of collateral estoppel, in the absence of countervailing policy," }, { "docid": "6502776", "title": "", "text": "necessarily decided in a prior suit.” Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 2213 n. 10, 60 L.Ed.2d 767 (1979). See also Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 n. 6, 102 S.Ct. 1883, 1889 n. 6, 72 L.Ed.2d 262 (1982); Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979); Lujan v. United States Department of the Interior, 673 F.2d 1165, 1168 n. 4 (10th Cir.1982). We conclude that here the doctrine of collateral estoppel barred the bankruptcy court from making a redetermination on nondischargeability under § 17a(7). In Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), the Supreme Court held that res judicata does not prevent a bankruptcy court from going beyond the judgment and record in a prior state court proceeding in determining the dis-chargeability of debts under §§ 17a(2) and (4) of the former Bankruptcy Act. We believe, however, that the decision does not indicate that collateral estoppel would not apply here for two reasons. First, Brown v. Felsen, dealt with the dischargeability of debts under the exclusive jurisdiction of the bankruptcy court. The Court noted that before 1970, res judicata claims concerning dischargeability were seldom heard in federal court. Traditionally, the bankruptcy court determined whether the debtor merited a discharge under § 14, but left the discharge-ability under § 17 of a particular debt to the court in which the creditor sued, after bankruptcy, to enforce his prior judgment. Typically, that court was a state court. 442 U.S. at 129, 99 S.Ct. at 2208. The Court explained that “[i]n 1970, however, Congress altered § 17 to require creditors to apply to the bankruptcy court for adjudication of certain dischargeability questions, including those arising under §§ 17a(2) and 17a(4).” Id. at 129-30, 99 S.Ct. at 2208. The Court concluded that “it would be inconsistent with the philosophy of the 1970 amendments to adopt a policy of res" }, { "docid": "18792808", "title": "", "text": "implied partial repeal ... repeals by implication are not favored”). An example of clear intent cited by the Supreme Court in Kremer is the federal ha-beus corpus statute, 28 U.S.C. § 2254. 456 U.S. 485 n. 27, 102 S.Ct. 1899 n. 27. For purposes of claim preclusion only, in Brown v. Felsen, 442 U.S. 127, 138, 99 S.Ct. 2205, 2212, 60 L.Ed.2d 767 (1979) the Supreme Court found sufficient congressional intent to deny res judicata effect to state court judgments in dischargeability litigation. This conclusion is acknowledged if not restated by the Supreme Court in Marrese. See — U.S. at-, 105 S.Ct. at 1334. The Supreme Court in Brown reserved, however, the question whether issue preclusion remained possible in dis-chargeability litigation. As the court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 59 L.Ed.2d 210, 99 S.Ct. 970 [973] (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 58 L.Ed.2d 552, 99 S.Ct. 645 [649 n. 5] (1979); Cromwell v. County of Sac, [4 Otto 351], 94 U.S. 351, 352-353, 24 L.Ed. 195 (1877). If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Because respondent does not contend that the state litigation actually and necessarily decided either fraud or any other question against petitioner, we need not and therefore do not decide whether a bankruptcy court adjudicating a § 17 question should give collateral-estoppel effect to a prior state judgment, (emphasis added). 442 U.S. 189 n. 10, 99 S.Ct. 2213 n. 10. The United States Court of Appeals for this circuit has addressed the question reserved in Brown. In Spilman v. Harley, 656 F.2d 224 (6th Cir.1981) the court" }, { "docid": "2067870", "title": "", "text": "Court must view the evidence in the light most favorable to the party opposing the motion. Lindley v. Amoco Production Co., 639 F.2d 671 (10th Cir.1981). Summary judgment may only be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Frito-Lay, Inc. v. Retail Clerks Union Local No. 1, 629 F.2d 653 (10th Cir.1980). To determine if there is any issue of material fact in this case, we must consider the applicability and effect of collateral es-toppel. Under the doctrine of collateral estoppel, a judgment on the merits in a prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action in a later suit between the same parties on a different cause of action. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Collateral estoppel protects litigants from the burden of relitigat-ing an identical issue with the same party and promotes judicial economy by preventing needless litigation. Parklane Hosiery Co., Inc. v. Shore, supra. On the question of the collateral estoppel effect of state court judgments in later proceedings in bankruptcy court to determine dischargeability, the Supreme Court has stated: If in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, [now § 523], then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 2213 n. 10, 60 L.Ed.2d 767 (1979). Since the Brown case, the lower courts have disagreed about the use of collateral estoppel in dischargeability cases. Some courts have refused to apply collateral es-toppel because of the view that it interferes with the exclusive jurisdiction of the bankruptcy court to determine the dischargeability of debts. See, e.g., In re Rahm, 641 F.2d 755 (9th Cir.1981). The better view, and that which is most consistent with the Supreme Court’s decision in Brown, supra," }, { "docid": "23268112", "title": "", "text": "the dischargeability of debts under 11 U.S.C. § 523(c). As stated in Spilman v. Harley, 656 F.2d 224, 226 (6th Cir.1981): The power to determine dischargeability was granted to bankruptcy courts by the 1970 Amendments to the Bankruptcy Act. Congress intended to take the determinations governed by 11 U.S.C. § 523(c) away from state courts and grant exclusive jurisdiction in the bankruptcy courts. See Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 2211-12, 60 L.Ed.2d 767 (1979); Matter of Pigge, 539 F.2d 369, 371 (4th Cir.1976) (footnote omitted) In light of this controlling Sixth Circuit Court of Appeals Opinion, among others, this Court is chary of adopting so exotic an interpretation. Finally, Plaintiff has asked, in the alternative, for the debt to be found nondis-chargeable based on collateral estoppel. In Brown v. Felsen the Supreme Court expressly left open the question whether or not collateral estoppel would apply in dis-chargeability proceedings: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10, 60 L.Ed.2d at 776 n. 10. In Spilman v. Harley, the Sixth Circuit Court of Appeals addressed the use of collateral estoppel, or “issue preclusion”, in dischargeability litigation. The Court held that where all the requirements of collateral estoppel are met, collateral estoppel should preclude relitigation of factual issues. 656 F.2d at 228. The use of collateral estoppel in a dischargeability proceeding requires that the precise issue constituting the grounds for nondischargeability were raised in the prior proceeding, that the issue was actually litigated, and that the determination was necessary to the outcome. Spilman, supra at 228; In re Sostarich, 53 B.R. 27 (Bankr.W.D.Ky.1985). Therefore, the initial inquiry must address whether the issue was actually litigated in state court. As reproduced above, the only materials documenting the state court litigation is the Referee’s Report. This does not appear to be a sufficient record to" }, { "docid": "4636640", "title": "", "text": "re Pigge, 539 F.2d [369] at 371; 1 D. Cowans, Bankruptcy Law and Practice § 253, p. 298 (1978). Compare 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy ¶ 17.16[6], p. 1650.1 n. 50 (14th ed. 1978) (1970 Act), with id., 1117.16[4], p. 1643 (prior state law). Id., 442 U.S. at 135-37, 99 S.Ct. at 2111-12, 60 L.Ed.2d at 774-75. The Courts have consistently applied the holding in the Brown case in dischargeability proceedings under 11 U.S.C. § 523(c). See, e.g., Carey Lumber Co. v. Bell, 615 F.2d 370 (5th Cir.1980); In re Goodman, 25 B.R. 932 (Bankr.N.D.Ill.1982); In re Spector, 22 B.R. 226 (Bankr.N.D.N.Y. 1982); In re Dohm, 19 B.R. 134 (Bankr.N.D.Ill.1982). It should be noted that the Brown case, did not involve the issue of whether issue preclusion or collateral estoppel effect should be given to a prior state court judgment by the bankruptcy court in the non-dischargeability context but the Court indicated that collateral estoppel could be applicable leaving the question open. As the Court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 59 L.Ed.2d 210, 99 S.Ct. 970 [973] (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 58 L.Ed.2d 552, 99 S.Ct. 645 [649 n. 5] (1979); Cromwell v. County of Sac, [4 Otto 351], 94 U.S. 351, 352-353, 24 L.Ed. 195 (1877). Id, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of §17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. (Emphasis added). Brown v. Felsen, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10, 60 L.Ed.2d at 776 n. 10. To resolve this issue a close analysis of the United States Constitution, the Bankruptcy Code and the" }, { "docid": "2302697", "title": "", "text": "that “neither a creditor nor a debtor should be required to have dischargeability issues tried in a prebankruptcy lawsuit.” Id. at 557. To give preclusive effect to a default judgment, the court noted, “forc[es] the defendant to litigate in the state court not to disprove the plaintiffs claim on the merits but specifically to preserve the questions of dischargeability in bankruptcy.” Id. The Hall court’s conclusion was based primarily on its reading of Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). In that case, the Supreme Court held that res judicata did not apply to a creditor’s state court consent judgment so as to prevent the creditor from proving fraud in a subsequent dischargeability action. The Court noted that application of res judicata in that situation “would force an otherwise unwilling party to try [dischargeability] questions to the hilt in order to protect himself against the mere possibility that the debtor might take bankruptcy in the future.” 442 U.S. at 135, 99 S.Ct. at 2211, 60 L.Ed.2d at 774. The Hall court’s reliance on this statement to support a general rule against giving any preclusive effect to state court judgments is misplaced. As the Brown Court noted: This case concerns res judicata only, and not the narrower principle of collateral es-toppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. If in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17 [the predecessor of § 523], then collateral es-toppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. 442 U.S. at 139, 99 S.Ct. at 2213, 60 L.Ed.2d at 776 n. 10 (citations omitted). Further, as the Sixth Circuit subsequently noted, the Brown Court’s concern about premature litigation of dischargeability issues was addressed to the situation in which the facts necessary for a determination of non-dischargeability were not necessary to the state court’s determination. Spilman" }, { "docid": "4680975", "title": "", "text": "the debtor argues that there are material issues of fact which exist that must be litigated which preclude summary judgment. The doctrine of res judicata, or claim preclusion, is distinguishable from the principle of collateral estoppel in that res judicata forecloses all that which might have been litigated previously by the parties, whereas collateral estoppel treats as final only those issues actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). In Brown v. Felsen, 442 U.S. 127, 139, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979), in dealing with the principle of res judicata, the Supreme Court noted in footnote 10 that if a state court determined factual issues in a state law question, using standards identical to those of § 17 of the former Bankruptcy Act (now 11 U.S.C. § 523), the principle of collateral estoppel, in the absence of countervailing policy, would bar relitigation of those issues in the bankruptcy court. In Spilman v. Harley, 656 F.2d 224 (6th Cir.1981), the court determined that issue preclusion was not at odds with the Supreme Court’s decision in Brown v. Felsen stating, Applying collateral estoppel is logically consistent with the Supreme Court’s decision in Brown and the exclusive jurisdiction of the bankruptcy court while at the same time encouraging judicial economy. The determination whether or not a certain debt is dischargeable is a legal conclusion based upon the facts in the case. The bankruptcy court has the exclusive jurisdiction based upon the facts in the case ... Therefore, res judicata does not apply to prevent litigation of every issue which might have been covered in the state court proceeding on the debt. However, that Congress intended the bankruptcy court to determine the final result — dischargeability or not— does not require the bankruptcy court to redetermine all the underlying facts. (Emphasis added). Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981); See In re Wallace, 840 F.2d 762" }, { "docid": "5166386", "title": "", "text": "discharge- ability issues. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). The Supreme Court in Brown held that a bankruptcy court is not barred by res judi-cata from determining, independent of a state-court judgment against the debtor, the nature of a debt to determine its dis-chargeability, and found that in making that determination, “the bankruptcy court is not confined to a review of the judgment and record in the prior state court proceeding when considering the dischargeability of respondent’s debt,_” In Brown however, the Supreme Court clearly distinguished between the application of res judi-cata and the application of collateral estop-pel: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Where res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. [Citations omitted.] If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of Sec. 17 [of the former Bankruptcy Act; similar to section 523 of the present Bankruptcy Code], then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Brown, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. However, although the bankruptcy court in dischargeability actions under § 523(a) ultimately determines whether or not a debt is dischargeable, the doctrine of collateral estoppel may be invoked to bar relitigation of the factual issues underlying the determination of dischargeability. The law in this Circuit has been enunciated in In re Shuler, 722 F.2d 1253, 1255 (5th Cir.1984), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984) “that collateral estoppel — arising from an earlier non-bankruptcy suit’s determination of subsidiary facts that were actually litigated and necessary to the decision — may properly be invoked by the bankruptcy court to bar relitigation of those issues, even though the bankruptcy court retains the exclusive jurisdiction to determine the ultimate question of the dischargeability under federal bankruptcy law of" }, { "docid": "18771169", "title": "", "text": "v. Daily, 921 F.2d 994 (10th Cir.), cert. denied, — U.S. -, 112 S.Ct. 405, 116 L.Ed.2d 354 (1991) (appeal of Daily and Figge's criminal conviction for conspiring to commit wire fraud and submitting false statements as to matters within the jurisdiction of a federal agency). . As used in this opinion, \"collateral estoppel” is synonymous with the concept of \"issue preclusion”, which treats as final only those questions actually and necessarily decided in a prior suit. Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 2213 n. 10, 60 L.Ed.2d 767 (1979). See also Austin W. Scott, Collateral Estoppel by Judgment, 56 Harv.L.Rev. 1, 3 n. 4 (1942). This concept is to be distinguished from “res judica-ta,” or \"claim preclusion.” \"[A] final judgment on the merits bars further claims by parties or their privies based on the same cause of action.\" Montana v. U.S., 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). Res judicata prevents litigation of all grounds for, or defense to, recovery that was previously available to the parties, regardless of whether the grounds were asserted or determined at the prior proceeding. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 320, 84 L.Ed. 329, 335, reh’g denied, 309 U.S. 695, 60 S.Ct. 581, 84 L.Ed. 1035 (1940); see generally, Barry Russell, Bankruptcy Evidence Manual §§ 1-40 (1994-95 ed.). Because nondischargeability of a debt is an entirely separate determination with its own elements under § 523 which require more than the establishment of liability, principles of res judica-ta do not apply (i.e. no determination of nondis-chargeability was made). Collateral estoppel, on the other hand, would apply to individual fact determinations made by the state court that were actually litigated. See Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). . If this were a state court judgment, we would nonetheless apply federal law. Generally, 28 U.S.C. § 1738 requires that federal courts afford the same full faith and credit to a state court judgment, as would apply in that state." }, { "docid": "16761564", "title": "", "text": "651, 654 (CA 9 1978); In re Pigge, 539 F.2d [369] at 371 [ (CA 4 1976)]; 1 D. Cowans, Bankruptcy Law and Practice § 253, p. 298 (1978). Compare 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy, para. 17.16[6], p. 1650.1 n. 50 (14th ed. 1978) (1970 Act), with id., para. 17.16[4], p. 1643 (prior state law). Id. 442 U.S. at 135-137, 99 S.Ct. at 2211. The Courts have consistently applied the holding in the Brown case in dis-chargeability proceedings under 11 U.S.C. § 523(c). See e.g., Carey Lumber Co. v. Bell, 615 F.2d 370 (5th Cir.1980); In re Goodman, 25 B.R. 932 (Bankr.N.D.Ill.1982); In re Spector, 22 B.R. 226 (Bankr.N.D.N.Y.1982); In re Dohm, 19 B.R. 134 (Bankr.N.D.Ill.1982). It should be noted that the Brown case did not involve the issue of whether issue preclusion or collateral estoppel effect should be given to a prior state court judgment by the bankruptcy court in the non-dischargeability context, but the Court indicated that collateral estoppel could be applicable, leaving the question open. As the Court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judica-ta forecloses all that which might have been litigated previously, collateral es-toppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 59 L.Ed.2d 210, 99 S.Ct. 970 [973] (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 58 L.Ed.2d 552, 99 S.Ct. 645 [649 n. 5] (1979); Cromwell v. County of Sac, 94 U.S. 351, 352-353, 24 L.Ed. 195 (1876). If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. (Emphasis added). Brown v. Felsen, 442 U.S. 139 n. 10, 99 S.Ct. 2213 n. 10, supra. In addition the Full Faith and Credit Clause of the United States Constitution, Art. IV, § 1, was implemented by" }, { "docid": "5513482", "title": "", "text": "Brown case in dischargeability proceedings under 11 U.S.C. § 523(c). See e.g., Carey Lumber Co. v. Bell, 615 F.2d 370 (5th Cir.1980); In re Goodman, 25 B.R. 932 (Bankr.N.D.Ill.1982); In re Spector, 22 B.R. 226 (Bankr.N.D.N.Y.1982); In re Dohm, 19 B.R. 134 (Bankr.N.D.Ill.1982). It should be noted that the Brown case did not involve the issue of whether issue preclusion or collateral estoppel effect should be given to a prior state court judgment by the bankruptcy court in the non-dischargeability context, but the Court indicated that collateral estoppel could be applicable, leaving the question open. As the Court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 59 L.Ed.2d 210, 99 S.Ct. 970 [973] (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 58 L.Ed.2d 552, 99 S.Ct. 645 [649 n. 5] (1979); Cromwell v. County of Sac, 94 U.S. 351, 352-353, 24 L.Ed. 195 (1877). If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar re-litigation of those issues in the bankruptcy court. (Emphasis added). Brown v. Felsen, 442 U.S. 139 n. 10, 99 S.Ct. 2213 n. 10, 60 L.Ed.2d at 776. To resolve this issue a close analysis of the United States Constitution, the Bankruptcy Code and the Full Faith and Credit Statute, 28 U.S.C. § 1738, is required. Article I, § 8, Cl. 4 of the United States Constitution mandates that Congress establish “uniform laws on the subject of bankruptcy throughout the United States.” Congress chose to implement that clause by enacting 11 U.S.C. § 523(c) which grants to the bankruptcy court exclusive jurisdiction over exceptions to discharge based on 11 U.S.C. § 523(a)(2) (false representations, false pretenses and actual fraud); § 523(a)(4) (fraud or defalcation" }, { "docid": "23259419", "title": "", "text": "property of another other than conversion as excepted under clause (2) of this subdivision.” The procedure for determining discharge-ability of a debt is set forth at section 17c of the Act, 11 U.S.C. § 35(c). However, nowhere in that statutory procedure does it address the question of what evidence should be considered in making the determination. The Supreme Court has recently addressed the application of section 17 to a state-court judgment sought to be discharged in bankruptcy. In Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), the Court held that res judicata did not preclude the bankruptcy court from considering extra-record evidence in determining dischargeability of a state-court judgment where the state court had not resolved the issues of fraud, deceit or malicious conversion, which the creditor raised as a bar to dischargeability. The holding in Brown is inapposite to this case, however, since the facts there are readily distinguishable from those here. Brown dealt with questions that could have been, but were not, decided in the court that rendered the judgment. Here, the district court awarded punitive damages upon its express finding of a “willful” violation of the Fair Credit Reporting Act by Franks. The factual scenario in this case was addressed by the Court in a footnote: [Brown] concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153 [99 S.Ct. 970, 973, 59 L.Ed.2d 210] (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 [99 S.Ct. 645, 649, n.5, 59 L.Ed.2d 645] (1979); Cromwell v. County of Sac, 94 U.S. 351, 352-353 [24 L.Ed. 195] (1877). If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Because respondent does" }, { "docid": "10228971", "title": "", "text": "all reasserted in the plaintiffs nondischargeability claim. The plaintiff simply charges that the debtor is liable as an undisclosed principal under the Davco stock purchase agreement, and that this liability arose as a result of the debt- or’s alleged false representations and actual fraud within the meaning of 11 U.S.C. § 523(a)(2)(A). The doctrine of res judicata, or claim preclusion, is distinguishable from the principle of collateral estoppel in that res judicata forecloses all that which might have been litigated previously by the parties, whereas collateral estoppel treats as final only those issues actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). In Brown v. Felsen, 442 U.S. 127, 139, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979), in dealing with the principle of res judicata, the Supreme Court noted in footnote 10 that if a state court determined factual issues in a state law question, using standards identical to those of § 17 of the former Bankruptcy Act (now 11 U.S.C. § 523), the principle of collateral estoppel, in the absence of countervailing policy, would bar relitigation of those issues in the bankruptcy court. Manifestly, the issues of false representations and actual fraud, which the debtor seeks to preclude in the instant case, are not the same issues as the debt- or’s liability under the promissory notes, as alleged in the plaintiff’s state court action. See In re Overmyer, 52 B.R. 111 (Bankr.S.D.N.Y.1985). The bankruptcy courts have exclusive jurisdiction in dischargeability cases. See Ferriell, The Preclusive Effect of State Court Decisions in Bankruptcy, 59 Am.Bankr.L.J. 55, 59 (1985). The state court’s non-final dismissal of the plaintiff’s promissory note claim, coupled with the granting of leave to the plaintiff to replead a contractual cause of action against the debtor as an undisclosed principal, does not bar plaintiff's nondischargeability claim premised on 11 U.S.C. § 523(a)(2)(A). Although the plaintiff may not assert a cause of action against the debtor" }, { "docid": "6502775", "title": "", "text": "due, or for maintenance or support of wife or child.” 11 U.S.C. § 35(a)(7) (1976). Section 17c(2) granted exclusive jurisdiction to bankruptcy courts to determine whether particular debts were nondis-chargeable under §§ 17a(2), (4) or (8). However, with respect to the other classes of debts under § 17a, including debts for alimony or maintenance and support under § 17a(7), state courts possessed jurisdiction concurrent with that of the bankruptcy court to determine dischargeability. Hence the District Court of Pontotoc County had jurisdiction to decide whether the $19,800 “alimony” and $5,000 attorneys’ fees awarded in the divorce decree were nondischargeable under § 17a(7). We must decide whether the bankruptcy court was bound by this prior state court determination that the debts were nondischargeable. Although the doctrines of res judicata (or claim preclusion) and collateral estoppel (or issue preclusion) are related, this case concerns the application of the latter. As the Supreme Court has stated, “[w]hereas res judicata forecloses all that which might have been litigated previously, collateral es-toppel treats as final only those questions actually and necessarily decided in a prior suit.” Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 2213 n. 10, 60 L.Ed.2d 767 (1979). See also Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 n. 6, 102 S.Ct. 1883, 1889 n. 6, 72 L.Ed.2d 262 (1982); Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979); Lujan v. United States Department of the Interior, 673 F.2d 1165, 1168 n. 4 (10th Cir.1982). We conclude that here the doctrine of collateral estoppel barred the bankruptcy court from making a redetermination on nondischargeability under § 17a(7). In Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), the Supreme Court held that res judicata does not prevent a bankruptcy court from going beyond the judgment and record in a prior state court proceeding in determining the dis-chargeability of debts under §§ 17a(2) and (4) of" }, { "docid": "1150811", "title": "", "text": "a debt is owed to the plaintiffs but contends that collateral estoppel is inapplicable in this case. The initial question is whether the application of collateral estoppel is appropriate in a dischargeability determination pursuant to section 523(a)(6). If the doctrine may be applied, it must then be determined whether the necessary prerequisites for the application of collateral estoppel have been met in this case. Until recently this has been an unsettled area of the law. Even the prior decisions of this court appear to be inconsistent. The difficulty is largely due to dicta in the Supreme Court decision of Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). In Brown, the court held that res judicata did not apply in dischargeability determinations pursuant to sections 523(a)(2), (4) and (6) given the Congressional grant to the bankruptcy court of exclusive jurisdiction over dischargeability determinations. The Court, however, expressly reserved ruling on the application of the narrower principle of collateral es-toppel in the dischargeability context. In footnote 10, the Court expressed its view on collateral estoppel: This ease concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153 [99 S.Ct. 970, 973, 59 L.Ed.2d 210] (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5 [99 S.Ct. 645, 649 n. 5, 59 L.Ed.2d 645] (1979); Cromwell v. County of Sac, 94 U.S. [4 Otto] 351, 352-353 [24 L.Ed. 195] (1877). If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Because respondent does not contend that the state litigation actually and necessarily decided either fraud or any other question against petitioner, we need not and therefore do not decide whether a bankruptcy court adjudicating" }, { "docid": "18902357", "title": "", "text": "preventing needless litigation. Id. at 326, 99 S.Ct. at 649, 58 L.Ed.2d at 559; citing, Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-29, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788. Under the doctrine of collateral estoppel, a judgment in a prior suit precludes relitigation of issues, in a subsequent action, which were actually litigated and necessary to the outcome of the first suit. Parklane Hosiery Co. v. Shore, 439 U.S. at 326, 99 S.Ct. at 649, 58 L.Ed.2d at 559. Bankruptcy courts have increasingly been asked to determine the extent to which the doctrines of res judicata and collateral estoppel apply to preclude relit-igation of issues and claims previously decided by other state and federal courts. Any such analysis must begin with Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), a case in which the Supreme Court held that extrinsic evidence may be admitted in order to determine accurately the dischargeability of a debt previously reduced to judgment in a state court. 442 U.S. at 138-39, 99 S.Ct. at 2213, 60 L.Ed.2d at 776. Although the Supreme Court was ruling on the issue of the defensive use of res judicata by the debtor in a bankruptcy dischargeability proceeding where the creditor’s claim had previously reduced to judgment in a state court, the Felsen court provided some guidance into the offensive use of collateral estoppel. In footnote 10, the Court observed that if a state court determined factual issues using identical standards as those found in § 17, then collateral estoppel could bar relit-igation of those issued in bankruptcy. 442 U.S. at 138, 99 S.Ct. at 2213, 60 L.Ed.2d at 776. Since the Felsen decision, the doctrines of collateral estoppel and res judicata in the context of discharge and dischargeability have been the subject of much debate. For example, at least one circuit has held that a prior judgment will never be granted issue preclusive effect in a subsequent dis-chargeability proceeding, although the judgment may be prima facie evidence of the facts contained therein. See In re Rahm, 641 F.2d 755, 757" }, { "docid": "16761565", "title": "", "text": "the Court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judica-ta forecloses all that which might have been litigated previously, collateral es-toppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 59 L.Ed.2d 210, 99 S.Ct. 970 [973] (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 58 L.Ed.2d 552, 99 S.Ct. 645 [649 n. 5] (1979); Cromwell v. County of Sac, 94 U.S. 351, 352-353, 24 L.Ed. 195 (1876). If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. (Emphasis added). Brown v. Felsen, 442 U.S. 139 n. 10, 99 S.Ct. 2213 n. 10, supra. In addition the Full Faith and Credit Clause of the United States Constitution, Art. IV, § 1, was implemented by 28 U.S.C. § 1738, the relevant portions of which provide as follows: The ... judicial proceedings of any court of any state ... shall have the same full faith and credit in every court within the United States and its territories and possessions as they have by law or usage in the courts of such state. The Supreme Court in examining the “full faith and credit clause” and 28 U.S.C. § 1738 has stated, “a federal court must give to a state court judgment the same preclusive effect as would be given that judgment under the law of the state in which the judgement was rendered”. Migra v. Warren City School District Board of Education, 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56, 63 (1984). See also, Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984); Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262" }, { "docid": "4787806", "title": "", "text": "Brown ease, did not involve the issue of whether issue preclusion or collateral estoppel effect should be given to a prior state court judgment by the bankruptcy court in the non-dischargeability context but the Court indicated that collateral estoppel could be applicable leaving the question open. As the Court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 59 L.Ed.2d 210, 99 S.Ct. 970 [973] (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 58 L.Ed.2d 552, 99 S.Ct. 645 [649 n. 5] (1979); Cromwell v. County of Sac, [4 Otto 351], 94 U.S. 351, 352-353, 24 L.Ed. 195 (1877). If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of §17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. (Emphasis added). Brown v. Felsen, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10, 60 L.Ed.2d at 776 n. 10. To resolve this issue a close analysis of the United States Constitution, the Bankruptcy Code and the Full Faith and Credit Statute, 28 U.S.C. § 1738, is required. Article I, § 8, cl. 4 of the United States Constitution mandates that Congress establish “uniform laws on the subject of Bankruptcy throughout the United States.” Congress chose to implement that clause by enacting 11 U.S.C. § 523(c) which grants to the bankruptcy court exclusive jurisdiction over exceptions to discharge based on 11 U.S.C. § 523(a)(2) (false representations, false pretenses and actual fraud); § 523(a)(4) (fraud or defalcation in a fiduciary capacity, embezzlement or larceny); and, § 523(a)(6) (willful or malicious injury to another entity). This exclusive jurisdiction was originally vested in the bankruptcy courts by the 1970 amendments to the Bankruptcy Act of 1898 then in effect. The 1898 Act" } ]

[ { "docid": "22269680", "title": "", "text": "U.S.Code Cong. & Admin.News, pp. 7075, 7088 with S.Rep. 93-1277, 93d Cong., 2d Sess. 18, reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 7051, 7064-65, the Advisory Committee’s Notes specifically conclude that “the rule [Rule 803(8)(C)] assumes admissibility in the first instance [of evaluative reports] but with ample provision for escape if sufficient negative factors are present.” Advisory Committee’s Note on Rule 803, reprinted in 4 Weinstein’s Evidence 803-45 — 803-46. The district court judge followed the Advisory Committee’s Notes in concluding that the Airworthiness Directives were admissible under Rule 803(8)(C) even though they contained evaluative materials. In our opinion the trial judge was correct in this determination since the proviso to Rule 803(8)(C) permits exclusion of such reports if evidence of lack of trustworthiness is introduced. This exclusionary mechanism provides a sufficient safeguard against the admission of unreliable evidence. See 4 Weinstein’s Evidence 1 803(8)[03]; McCormick, Handbook of the Law of Evidence § 317 (2d ed. 1972). This reading of Rule 803(8)(C) reconciles it with both Rule 702 (allowing objections to the qualifications of an expert witness) and Rule 705 allowing disclosure of facts and data underlying an expert’s testimony on cross-examination). Official reports are admitted as an exception to the hearsay rule because they are presumed to be generally reliable. The objections permitted by Rules 702 and 705 provide a means of testing their reliability. Before these objections may be recognized, however, the party challenging the validity of an official report admitted under 803(8)(C) must come forward with some evidence which would impugn its trustworthiness. See Mancie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir. 1975) (FAA advisory materials admitted as exception to hearsay rule because of indicia of reliability). To allow objections to be sustained under Rules 702 and 705 without a showing of untrustworthiness would have the practical effect of nullifying the exception to the hearsay rule provided by Rule 803(8)(C). On retrial, then, the Directives will be admissible unless American comes forward with evidence that would indicate their lack of trustworthiness. VI We have determined that the district court erred in" } ]

[ { "docid": "3890219", "title": "", "text": "PER CURIAM: This case was taken en banc for the purpose of reconsidering controlling authority in this Circuit concerning the admissibility in evidence of an opinion expressed in an investigative report of an airplane crash. The Court is evenly divided on the issue, however, so that the controlling authority remains as set forth in the panel decision. Since the Court is unanimous in upholding the panel’s decision on the other evidentiary issue which requires a reversal for a new trial, the effect of this en banc procedure is to reinstate the panel opinion. Rainey v. Beech Aircraft Corp., 784 F.2d 1523 (11th Cir.1986). This opinion will simply review the case and the effect of this decision. Lieutenant Commander Barbara Ann Rainey, a flight instructor with the United States Navy, and her student, Ensign Donald Bruce Knowlton died on July 13, 1982 in a fiery airplane crash while practicing landings and takeoffs at Middleton Field, Alabama. Their spouses, John Charles Rainey (“Rainey”) and Rondi M. Knowlton (“Knowlton”) sought money damages under the Florida Wrongful Death Act, Fla. Stat.Ann § 768.16-.27 in district court. The jury returned a verdict against the plaintiffs. At trial, the only disputed issue was the cause of the fatal crash. Lieutenant Colonel David I. Habermacher, Jr., with authorization from the Manual of the Judge Advocate General § 0902, at 9-3 to -5, appointed Lieutenant Commander William C. Morgan, Jr. to conduct an investigation into the circumstances surrounding the aircraft accident. Lieutenant Commander Morgan’s report, since it was prepared in conjunction with an authorized Judge Advocate General investigation, is a public record. Because no evidence was introduced to show that the report lacked trustworthiness, the factual findings contained in the report are admissible under Rule 803(8). Rainey, 784 F.2d at 1527. In his report, however, Morgan also gave his opinion that pilot error was “[t]he most probable cause of the accident.” Id. at 1526. Rainey and Knowlton disagreed with Lieutenant Commander Morgan’s opinion. In a letter written to Morgan about the “aircraft mishap,” Rainey, also a flight instructor with the United States Navy, concluded that the mishap was" }, { "docid": "18711888", "title": "", "text": "Knowlton’s objection, excerpts from the investigative report prepared by Lieutenant Commander Morgan. On appeal, Rainey and Knowlton argue that many of the excerpts from the investigative report, specifically Lieutenant Commander Morgan’s opinions, should not have been admitted into evidence because these opinions did not fall within the public records exception to the general hearsay rule. To be admissible, the excerpts from Lieutenant Commander Morgan’s re port must satisfy the hearsay exception for public records and reports. See Fed.R. Evid. 803(8). Rule 803(8) provides a hearsay exception in civil actions for “factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” Lieutenant Colonel Habermacher, with authorization from the Manual of the Judge Advocate General § 0902, at 9-3 to -5, appointed Lieutenant Commander Morgan to conduct an investigation into the circumstances surrounding the aircraft accident. Lieutenant Commander Morgan’s report, since it was prepared in conjunction with an authorized Judge Advocate General investigation, is a public record. Moreover, because no evidence was introduced to show that the report lacked trustworthiness, we find that the report was indeed trustworthy. Thus, the factual findings contained in the report are admissible under Rule 803(8). Cases interpreting Rule 803(8), however, disclose a difference of opinion as to the meaning of “factual findings.” Compare Complaint of American Export Lines, Inc., 73 F.R.D. 454, 458 (S.D.N.Y.1977) (evaluative conclusions or opinions are not “factual findings”); with Complaint of Paducah Towing Co., 692 F.2d 412, 420 (6th Cir.1982) (evaluative reports are admissible as “factual findings” if based upon circumstantial evidence) (citation omitted). In deciding how to interpret “factual findings” in the context of this case, we are bound by the Fifth Circuit’s interpretation in Smith v. Ithaca Corp., 612 F.2d 215 (5th Cir.1980). In Smith, the Fifth Circuit considered the admissibility of a Coast Guard Marine Board of Investigation Report and found that the “evaluative conclusions and opinions of the Coast Guard Marine Board of Investigation contained in the report should not have been admitted into evidence.” Id. at 222. The Fifth Circuit noted that:" }, { "docid": "18711899", "title": "", "text": "Cir.1975)). That burden was not met here. Rainey and Knowlton argue that they were unable to meet their burden because they were surprised by the district court’s ruling the day before trial admitting into evidence Lieutenant Commander Morgan’s opinions. But Rainey and Knowlton knew months before trial that the defendants would seek to admit Lieutenant Commander Morgan’s report into evidence. Still, Rainey and Knowlton made no effort to attack the qualifications of Lieutenant Commander Morgan or the methodology he employed in conducting the investigation. In fact, when the trustworthiness of the report was discussed during the pretrial conference, Rainey and Knowlton admitted that there was no evidence to indicate that the report was untrustworthy. On July 10, 1984 when the judge decided to admit the opinions into evidence, he granted Rainey and Knowlton leave to review the report and, if they so chose, to present evidence concerning the trustworthiness of the opinions. Rainey and Knowlton presented no such evidence, and did not seek a continuance. Thus, in light of the fact that there was no evidence presented to show that the report lacked trustworthiness we agree with the district court in finding that the report was trustworthy. . The legislative history of the Rule reveals the origins of the conflict. The House Committee on the Judiciary intended that \"'factual findings’ be strictly construed and that evaluations or conclusions contained in public reports shall not be admissible under this Rule.” H.R.Rep. No. 93-650, 93d Cong., 2d Sess. 4, reprinted in 1974 U.S.Code Cong. & Ad.News 7075, 7088. On the other hand, the Senate Committee on the Judiciary took \"strong exception to this limiting understanding of the application of the rule.” S.Rep. No. 93-1277, 93d Cong., 2d Sess. 4, reprinted in 1974 U.S.Code Cong. & Ad.News 7051, 7064. The Senate Judiciary Committee recommended a liberal interpretation of \"factual findings” so as to include \"evaluative reports.” Id. The Advisory Committee on the Proposed Rules also suggested that \"factual findings” might encompass evaluative reports. See Fed.R.Evid. 803(8) advisory committee note. . The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1207" }, { "docid": "3890243", "title": "", "text": "of the findings of fact, aircraft history, and inspection records indicate [sic] no irregularities which can be specified as a cause of the crash of 3E955. 2. There is no factual evidence of command or supervisory error. 3. There is no factual evidence to indicate that LCDR Rainey or ENS Knowlton were not physically, socialogically [sic], or mentally prepared to complete their flight. 4. There is evidence to indicate that the failure of ENS Knowlton’s rotary buckle may have contributed to the severity of his head injury. 7. The most probable cause of the accident was the pilots [sic] failure to maintain proper interval. On July 20, 1984, the jury returned a verdict for the defendants, finding that the deaths of LCDR Rainey and ENS Knowlton were not legally caused by the aircraft’s fuel control system, and that there was no negligence on the part of Beech Aircraft, Pratt & Whitney, or Beech Aerospace that legally caused the deaths of LCDR Rainey and ENS Knowlton. On August 1, 1984, the plaintiffs filed a motion for a new trial, challenging two of the trial judge's evidentiary rulings. The district court denied the motion, and this, appeal followed. A panel of this court reversed the district court, holding that the district court improperly restricted plaintiff Rainey’s trial testimony and that it improperly admitted into evidence, contrary to precedent of this court found in Smith v. Ithaca Corp., 612 F.2d 215 (5th Cir.1980), the opinions contained in LCDR Morgan’s investigative report. We took the case en banc to consider both evidentiary issues, thereby vacating the panel’s opinion and judgment by operation of law. See 11th Cir.R. 26(k). I write now to urge that the en banc court reject the holding of Smith and affirm the district court’s ruling admitting into evidence the opinions contained in LCDR Morgan’s investigative report. II. To be admissible, an investigative report of the sort prepared by LCDR Morgan must satisfy the hearsay exception for public records and reports found in Fed.R.Evid. 803(8)(C). That rule provides a hearsay exception for “[rjecords, reports, statements, or data compilations, in any form," }, { "docid": "3890245", "title": "", "text": "of public offices or agencies, setting forth ... in civil actions and proceedings ... factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” Fed.R.Evid. 803(8)(C). As to the rule's public record requirement, the en banc court holds that LCDR Morgan’s investigative report is a public record: it was prepared in conjunction with an authorized Judge Advocate General investigation. As to the rule’s caveat that certain findings of a public record are admissible unless the sources of the information that lead to the findings or other circumstances indicate that such sources were untrustworthy, there is no evidence in the record that would indicate that the sources upon which LCDR Morgan relied lacked trustworthiness. The burden was on the plaintiffs to show that the report was inadmissible if they believed that its sources of information or other circumstances indicated that the report lacked trustworthiness. See Fed.R.Evid. 803(8) advisory committee’s note (Rule 803(8) “assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present”); see also Melville v. American Home Assurance Co., 584 F.2d 1306, 1316 (3d Cir.1978) (citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir.1975)). Although the plaintiffs knew months before trial that the defendants would seek to admit LCDR Morgan’s investigative report into evidence, they attacked neither the qualifications of LCDR Morgan nor the methodology he employed. During the July 10, 1984 pretrial conference, the plaintiffs requested leave to review the report to determine whether to present evidence bearing on the trustworthiness of the report’s opinions. The district court granted the plaintiffs' request, but they presented no evidence challenging the report’s trustworthiness and did not seek a continuance to gather such evidence. The plaintiffs have not met their burden. For these reasons, this court cannot, and does not, set aside the district court’s finding that the report is trustworthy. The issue that divides us is whether “factual findings resulting from an investigation,” Fed.R.Evid. 803(8)(C), encompasses evaluative conclusions derived from the report. The" }, { "docid": "3890242", "title": "", "text": "would not be allowed in because it is not relevant. Accordingly, the district court held that paragraphs five, eight, and nine of the report’s “opinions” section would not be allowed into evidence at trial. The plaintiffs objected to the district court’s new ruling on the admissibility of the JAG report, citing Smith v. Ithaca Corp., 612 F.2d 215 (5th Cir.1980). In light of the court’s ruling, the plaintiffs requested an opportunity to review the JAG report for the purpose of offering evidence and witnesses relating to LCDR Morgan’s “Opinion” No. 7 (which appears to be based on “Finding of Fact” No. 13): “The most probable cause of the accident was the pilots [sic] failure to maintain proper interval.” The district court granted the plaintiffs’ request. The only disputed issue at trial was the cause of the fatal crash. The parties relied heavily on opinions of expert witnesses. The defendants relied in part on excerpts from the opinions contained in LCDR Morgan’s investigative report. The following “opinions” from that report were admitted into evidence: 1. Examination of the findings of fact, aircraft history, and inspection records indicate [sic] no irregularities which can be specified as a cause of the crash of 3E955. 2. There is no factual evidence of command or supervisory error. 3. There is no factual evidence to indicate that LCDR Rainey or ENS Knowlton were not physically, socialogically [sic], or mentally prepared to complete their flight. 4. There is evidence to indicate that the failure of ENS Knowlton’s rotary buckle may have contributed to the severity of his head injury. 7. The most probable cause of the accident was the pilots [sic] failure to maintain proper interval. On July 20, 1984, the jury returned a verdict for the defendants, finding that the deaths of LCDR Rainey and ENS Knowlton were not legally caused by the aircraft’s fuel control system, and that there was no negligence on the part of Beech Aircraft, Pratt & Whitney, or Beech Aerospace that legally caused the deaths of LCDR Rainey and ENS Knowlton. On August 1, 1984, the plaintiffs filed a motion for" }, { "docid": "18711887", "title": "", "text": "of the T-34C Turbo-Mentor aircraft, Pratt and Whitney Canada, Inc., the manufacturer of the éngine incorporated into the T-34C aircraft, and Beech Aerospace Services, Inc., the United States Navy’s contract maintenance service for the T-34C aircraft, were named as defendants. At trial, the only disputed issue was the cause of the fatal crash. Because both Lieutenant Commander Rainey and Ensign Knowlton were not available to testify and because the aircraft, was almost totally destroyed by fire, the parties relied heavily on opinions developed by expert witnesses. The defendants also relied on the opinions contained in the investigative report prepared by Lieutenant Commander Morgan. Pointing to Lieutenant Commander Morgan’s opinion that pilot error was the most probable cause of the crash, the defendants argued that they should not be held responsible. The jury agreed. On August 1, 1984 Rainey and Knowlton, complaining about two of the trial judge’s evidentiary rulings, filed a motion for a new trial. The judge denied the motion. This appeal promptly followed. II. The district court admitted into evidence, over Rainey and Knowlton’s objection, excerpts from the investigative report prepared by Lieutenant Commander Morgan. On appeal, Rainey and Knowlton argue that many of the excerpts from the investigative report, specifically Lieutenant Commander Morgan’s opinions, should not have been admitted into evidence because these opinions did not fall within the public records exception to the general hearsay rule. To be admissible, the excerpts from Lieutenant Commander Morgan’s re port must satisfy the hearsay exception for public records and reports. See Fed.R. Evid. 803(8). Rule 803(8) provides a hearsay exception in civil actions for “factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” Lieutenant Colonel Habermacher, with authorization from the Manual of the Judge Advocate General § 0902, at 9-3 to -5, appointed Lieutenant Commander Morgan to conduct an investigation into the circumstances surrounding the aircraft accident. Lieutenant Commander Morgan’s report, since it was prepared in conjunction with an authorized Judge Advocate General investigation, is a public record. Moreover, because no evidence was" }, { "docid": "18711898", "title": "", "text": "as a cause of the crash of 3E955. 2. There is no factual evidence of command or supervisory error. 3. There is no factual evidence to indicate that LCDR Rainey or ENS Knowlton were not physically, socialogically [sic], or mentally prepared to complete their flight. 4. There is evidence to indicate that the failure of ENS Knowlton’s rotary buckle may have contributed to the severity of his head injury. ****** 7. The most probable cause of the accident was the pilots failure to maintain proper interval. . The Advisory Committee on the Proposed Rules notes that Fed.R.Evid. 803(8) \"assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present.” Fed.R.Evid. 803(8) advisory committee note. Thus, the burden was upon Rainey and Knowlton to show that the report was inadmissible because its sources of information or other relevant circumstances indicated a lack of trustworthiness. Melville v. American Home Assurance Co., 584 F.2d 1306, 1316 (3d Cir.1978) (citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir.1975)). That burden was not met here. Rainey and Knowlton argue that they were unable to meet their burden because they were surprised by the district court’s ruling the day before trial admitting into evidence Lieutenant Commander Morgan’s opinions. But Rainey and Knowlton knew months before trial that the defendants would seek to admit Lieutenant Commander Morgan’s report into evidence. Still, Rainey and Knowlton made no effort to attack the qualifications of Lieutenant Commander Morgan or the methodology he employed in conducting the investigation. In fact, when the trustworthiness of the report was discussed during the pretrial conference, Rainey and Knowlton admitted that there was no evidence to indicate that the report was untrustworthy. On July 10, 1984 when the judge decided to admit the opinions into evidence, he granted Rainey and Knowlton leave to review the report and, if they so chose, to present evidence concerning the trustworthiness of the opinions. Rainey and Knowlton presented no such evidence, and did not seek a continuance. Thus, in light of the fact that there was no" }, { "docid": "3890221", "title": "", "text": "not the result of pilot error but more probably “caused by some form of pneumatic sensing/fuel flow malfunction, probably in the fuel control unit.” According to Rainey, this malfunction prompted an inflight “power interruption” or “rollback” making it impossible for Lieutenant Commander Rainey to sustain sufficient power to maintain flight. Because the two people in the plane were killed and the aircraft was almost totally destroyed by fire, the parties relied heavily on opinions developed by expert witnesses. The defendants offered into evidence the opinion contained in the investigative report prepared by Lieutenant Commander Morgan. Two points are raised on appeal. First, plaintiffs contend that John Charles Rainey’s testimony was unduly restricted on cross-examination by his own attorney about his letter to Morgan after counsel for Beech Aircraft Corporation had called Rainey as an adverse witness. The panel opinion fully sets forth the circumstances concerning this issue and concludes the district court should be reversed for two reasons: (1) Fed.R.Evid. 106 requires the court to let Rainey testify as to the whole letter and, (2) the testimony was admissible under Fed.R.Evid. 801(d)(1)(B). Rainey, 784 F.2d 1528-30. The Court is unanimous in concluding that the panel opinion is correct in reasoning and result, so no further discussion of the issue is in order here. Second, Rainey and Knowlton appeal the district court’s decision to admit into evidence, over their objection, the opinion as to cause of the accident in the investigative report prepared by Lieutenant Commander Morgan. Morgan did not testify at the trial. The panel held that prior precedent of this Court, found in Smith v. Ithaca Corp., 612 F.2d 215 (5th Cir.1980), requires that the district court be reversed on this point. Rainey, 784 F.2d at 1527-28. Smith holds that “evaluative conclusions and opinions,” such as those contained in Lieutenant Commander Morgan’s report, are not admissible. 612 F.2d at 221-22. The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. Judge Johnson specially concurred in the panel" }, { "docid": "18711897", "title": "", "text": "20, 1984, at the pretrial conference, the district court ruled that Lieutenant Commander Morgan’s report was trustworthy and admissible but \"only on its factual findings and would not be admissible insofar as any opinions or conclusions are concerned.\" On July 10, 1984, the day before trial, the district court reversed in part its prior ruling. At that time, the judge decided to admit into evidence the opinions and conclusions contained in the investigative report. In light of the court's ruling, Rainey and Knowlton requested an opportunity to review Lieútenant Commander Morgan's report and \"leave, in the event we so decide, to call as a witness such person or persons who might not have been called at this trial, but who could present evidence concerning that conclusion [that pilot error was the \"most probable cause” of the crash] and the trustworthiness of it.” The district court granted the request. . The following opinions were admitted into evidence: 1. Examination of the findings of fact, aircraft history, and inspection records indicate no irregularities which can be specified as a cause of the crash of 3E955. 2. There is no factual evidence of command or supervisory error. 3. There is no factual evidence to indicate that LCDR Rainey or ENS Knowlton were not physically, socialogically [sic], or mentally prepared to complete their flight. 4. There is evidence to indicate that the failure of ENS Knowlton’s rotary buckle may have contributed to the severity of his head injury. ****** 7. The most probable cause of the accident was the pilots failure to maintain proper interval. . The Advisory Committee on the Proposed Rules notes that Fed.R.Evid. 803(8) \"assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present.” Fed.R.Evid. 803(8) advisory committee note. Thus, the burden was upon Rainey and Knowlton to show that the report was inadmissible because its sources of information or other relevant circumstances indicated a lack of trustworthiness. Melville v. American Home Assurance Co., 584 F.2d 1306, 1316 (3d Cir.1978) (citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th" }, { "docid": "3890220", "title": "", "text": "Fla. Stat.Ann § 768.16-.27 in district court. The jury returned a verdict against the plaintiffs. At trial, the only disputed issue was the cause of the fatal crash. Lieutenant Colonel David I. Habermacher, Jr., with authorization from the Manual of the Judge Advocate General § 0902, at 9-3 to -5, appointed Lieutenant Commander William C. Morgan, Jr. to conduct an investigation into the circumstances surrounding the aircraft accident. Lieutenant Commander Morgan’s report, since it was prepared in conjunction with an authorized Judge Advocate General investigation, is a public record. Because no evidence was introduced to show that the report lacked trustworthiness, the factual findings contained in the report are admissible under Rule 803(8). Rainey, 784 F.2d at 1527. In his report, however, Morgan also gave his opinion that pilot error was “[t]he most probable cause of the accident.” Id. at 1526. Rainey and Knowlton disagreed with Lieutenant Commander Morgan’s opinion. In a letter written to Morgan about the “aircraft mishap,” Rainey, also a flight instructor with the United States Navy, concluded that the mishap was not the result of pilot error but more probably “caused by some form of pneumatic sensing/fuel flow malfunction, probably in the fuel control unit.” According to Rainey, this malfunction prompted an inflight “power interruption” or “rollback” making it impossible for Lieutenant Commander Rainey to sustain sufficient power to maintain flight. Because the two people in the plane were killed and the aircraft was almost totally destroyed by fire, the parties relied heavily on opinions developed by expert witnesses. The defendants offered into evidence the opinion contained in the investigative report prepared by Lieutenant Commander Morgan. Two points are raised on appeal. First, plaintiffs contend that John Charles Rainey’s testimony was unduly restricted on cross-examination by his own attorney about his letter to Morgan after counsel for Beech Aircraft Corporation had called Rainey as an adverse witness. The panel opinion fully sets forth the circumstances concerning this issue and concludes the district court should be reversed for two reasons: (1) Fed.R.Evid. 106 requires the court to let Rainey testify as to the whole letter and, (2)" }, { "docid": "18711886", "title": "", "text": "crash. On September 1, 1982 Lieutenant Commander Morgan reported, in writing, his findings of fact, opinions and recommendations pursuant to the requirements established by the Judge Advocate General. Lieutenant Commander Morgan’s report lists as an opinion that pilot error was “[t]he most probable cause of the accident.” Rainey and Knowlton disagree with Lieutenant Commander Morgan’s opinion. In a letter written to Lieutenant Commander Morgan about the “aircraft mishap,” Rainey, also a flight instructor with the United States Navy, concluded that the mishap was not the result of pilot error but more probably “caused by some form of pneumatic sensing/fuel flow malfunction, probably in the fuel control unit.” According to Rainey, this malfunction prompted an inflight “power interruption” or “rollback” making it impossible for Lieutenant Commander Rainey to sustain sufficient power to maintain flight. Knowlton agreed with Rainey’s conclusion and on April 15, 1983 Rainey and Knowlton filed separate suits in the United States District Court for the Northern District of Florida, alleging negligence and strict product liability causes of action. Beech Aircraft Corporation, the manufacturer of the T-34C Turbo-Mentor aircraft, Pratt and Whitney Canada, Inc., the manufacturer of the éngine incorporated into the T-34C aircraft, and Beech Aerospace Services, Inc., the United States Navy’s contract maintenance service for the T-34C aircraft, were named as defendants. At trial, the only disputed issue was the cause of the fatal crash. Because both Lieutenant Commander Rainey and Ensign Knowlton were not available to testify and because the aircraft, was almost totally destroyed by fire, the parties relied heavily on opinions developed by expert witnesses. The defendants also relied on the opinions contained in the investigative report prepared by Lieutenant Commander Morgan. Pointing to Lieutenant Commander Morgan’s opinion that pilot error was the most probable cause of the crash, the defendants argued that they should not be held responsible. The jury agreed. On August 1, 1984 Rainey and Knowlton, complaining about two of the trial judge’s evidentiary rulings, filed a motion for a new trial. The judge denied the motion. This appeal promptly followed. II. The district court admitted into evidence, over Rainey and" }, { "docid": "3890270", "title": "", "text": "certainly of the sort that the rule contemplates as trustworthy: the report is thorough, as evidenced by the supporting documents totaling 159 pages, and LCDR Morgan’s conclusions are credible, having been endorsed by six fellow officers of various ranks. Moreover, the district court gave the plaintiffs ample opportunity to challenge the trustworthiness of the report; nevertheless, the plaintiffs presented no evidence attacking the qualifications of LCDR Morgan or the methodology he employed. The sole issue that evenly divides this court is whether “factual findings resulting from an investigation,” Fed.R.Evid. 803(8)(C), encompasses evaluative conclusions derived from the report. Based on the facts uncovered by his extensive investigation, LCDR Morgan reached several conclusions that the district court admitted into evidence. Finding that the “aircraft history, and inspection records indicate no irregularities which can be specified as a cause of the crash” (Opinion No. 1), LCDR Morgan eliminated, in effect, a defect in the fuel control system as the cause of the accident. He concluded that based on his investigation there was no contributing command or supervisory error (Opinion No. 2). LCDR Morgan also found that neither LCDR Rainey nor ENS Knowlton had any physical or mental ailments that could have caused the crash (Opinion No. 3). Having eliminated several other possible causes of the crash, and based on (1) the statements of the other instructors and students engaged in the “touch and go” exercise, (2) air traffic control records, and (3) an analysis of the traffic pattern diagram for Middleton Field, LCDR Morgan concluded that “[t]he most probable cause of the accident was the pilots [sic] failure to maintain proper interval.” (Opinion No. 7). In other words, in LCDR Morgan’s professional judgment, pilot error caused the crash. In my view, LCDR Morgan’s conclusions that were admitted into evidence at trial are “factual findings” within the common sense meaning of that term and as contemplated by the Advisory Committee and the Senate Judiciary Committee. Moreover, consistent with the overall spirit of the Federal Rules of Evidence, LCDR Morgan’s evaluative findings could certainly have been helpful to the jury. For these reasons, the district" }, { "docid": "3890271", "title": "", "text": "(Opinion No. 2). LCDR Morgan also found that neither LCDR Rainey nor ENS Knowlton had any physical or mental ailments that could have caused the crash (Opinion No. 3). Having eliminated several other possible causes of the crash, and based on (1) the statements of the other instructors and students engaged in the “touch and go” exercise, (2) air traffic control records, and (3) an analysis of the traffic pattern diagram for Middleton Field, LCDR Morgan concluded that “[t]he most probable cause of the accident was the pilots [sic] failure to maintain proper interval.” (Opinion No. 7). In other words, in LCDR Morgan’s professional judgment, pilot error caused the crash. In my view, LCDR Morgan’s conclusions that were admitted into evidence at trial are “factual findings” within the common sense meaning of that term and as contemplated by the Advisory Committee and the Senate Judiciary Committee. Moreover, consistent with the overall spirit of the Federal Rules of Evidence, LCDR Morgan’s evaluative findings could certainly have been helpful to the jury. For these reasons, the district court did not abuse its discretion when it admitted portions of LCDR Morgan’s “opinions.” I would nevertheless reverse the district court, concurring in the en banc court’s judgment that the district court improperly restricted the cross-examination testimony of John Charles Rainey. . Fed.R.Evid. 803(8)(C) provides as follows: Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. . A “touch and go\" pattern is a training exercise in which, after takeoff, the student circles the airfield in an oval pattern and then lands the aircraft; after landing, the student does not stop the plane but instead accelerates and takes" }, { "docid": "18711895", "title": "", "text": "by the prior statements alone. The court, therefore, erred in permitting the defendants to examine Rainey about portions of his letter while prohibiting cross-examination about other/relevant portions. Because paragraph, five of the letter would have harmonized the prior statements with Rainey’s stance at trial, the jury was given an incomplete and misleading impression of Rainey’s position. Under the “rule of completeness” embodied in Rule 106, the limitation of Rainey’s testimony was thus inherently unfair and an abuse of discretion. Rainey and Knowlton are entitled to a new trial. IV. We hold that the trial judge committed reversible error in 1) admitting into evidence the evaluative conclusions and opinions contained in Lieutenant Commander Morgan’s investigative report and 2) limiting Rainey’s trial testimony. We therefore reverse the judgment entered against Rainey and Knowlton and remand for a new trial. REVERSED AND REMANDED. . Rainey brought suit individually, as the personal representative of his wife’s estate, and on behalf of his minor children, Cynthia Ann Rainey and Katharine Marie Rainey. Knowlton sued individually, as the personal representative of her husband’s estate, and on behalf of her minor children, Ramsey Nia Knowlton and Branigan McDermott Knowlton. By order dated March 20, 1984 the two cases were consolidated \"for all purposes including consolidation for trial.” . A “touch and go” is a training exercise employed to familiarize students with takeoffs and landings. After takeoff, the student circles the airfield in an oval or racetrack pattern and then lands the aircraft. Upon landing, the student does not stop the craft, but accelerates to take off again. . It is, of course, impossible to determine whether Lieutenant Commander Rainey or Ensign Knowlton was in control of the aircraft at this time. Witnesses knowledgeable in flight instruction, however, testified that Lieutenant Commander Rainey, a trained pilot and flight instructor, would, under these circumstances, assume control over the aircraft. . Rainey and Knowlton objected to the admissibility of several opinions contained in Lieutenant Commander Morgan’s investigative report. Rainey and Knowlton also objected to the restriction of Rainey’s trial testimony. These objections are now raised on appeal. . On March" }, { "docid": "18711902", "title": "", "text": "evidence. We therefore apply the concerns of the Rule — fairness and completeness — to this case. . The district court’s limitation of Rainey’s testimony was erroneous for another reason as well. As Rainey and Knowlton noted, the district court permitted the defendants' inquiry into Rainey’s letter, finding the statements in the letter admissible against Rainey as a prior inconsistent statement und' c Fed.R.Evid. 801(d)(1)(A) and admissible against Knowlton as an adoptive admission under Fed.R.Evid. 801(d)(2)(B). Mr. Larry sought to question Rainey about paragraph five of the letter. Rainey and Knowlton contend that Rainey’s statement in paragraph five should have been ruled admissible under Fed.R.Evid. 801(d)(1)(B) as \"a prior consistent statement made by him offered to rebut an implied or express charge that in other parts of his letter he had made statements inconsistent with his trial theory.” Brief for Appellants at 28-29. We agree. JOHNSON, Circuit Judge, concurring specially: I concur with the panel’s opinion in this case. I write separately to urge that, while we are clearly bound by Smith v. Ithaca Corp., 612 F.2d 215 (5th Cir.1980), to hold that the evaluative conclusions contained in Lieutenant Commander Morgan’s report are not admissible under Fed.R.Evid. 803(8)(c), our interpretation of this rule is ripe for reconsideration. Smith is an anomaly among the circuits. The majority view favors broad admissibility under Rule 803(8)(e)’s “factual findings” standard. See, e.g., Ellis v. International Playtex, Inc., 745 F.2d 292, 300-301 (4th Cir.1984) (“[I]t is well established that the phrase should be interpreted broadly”). Weinstein’s evidence treatise advocates such a reading, Weinstein on Evidence § 803(8)[03] (1985) (“[i]f the report states a conclusion that would be helpful — and is reliable — it should be admitted”), and the Advisory Committee’s Note may be read as consonant with this interpretation, id. Broad admissibility releases trial judges from the duty to draw sometimes arbitrary lines between fact and opinion, and focuses the court’s inquiry instead on the trustworthiness and relevance of the reports in question. This case presents an appropriate opportunity for reconsideration of this critical evidentiary issue by the full Court." }, { "docid": "3890235", "title": "", "text": "NAS Pensacola, Florida, (enclosure (48)). OPINIONS 1. Examination of the findings of fact, aircraft history, and inspection records indicate [sic] no irregularities which can be specified as a cause of the crash of 3E955. 2. There is no factual evidence of command or supervisory error. 3. There is no factual evidence to indicate that LCDR Rainey or ENS Knowlton were not physically, socialogically [sic], or mentally prepared to complete their flight. 4. There is evidence to indicate that the failure of ENS Knowlton’s rotary buckle may have contributed to the severity of his head injury. 5. Because both pilots were killed in the crash and because of the nearly total destruction of the aircraft by fire, it is almost impossible to determine exactly what happened to Navy 3E955 from the time it left the runway on its last touch and go until it impacted the ground. However, from evidence available and the information gained from eyewitnesses, a possible scenario can be constructed as follows: a. 3E955 entered the Middleton pattern with ENS Knowlton at the controls attempting to make normal landings. b. After two unsuccessful attempts, LCDR Rainey took the aircraft and demonstrated two landings “on the numbers”. After getting the aircraft safely airborne from the touch and go, LCDR Rainey transferred control to ENS Knowlton. c. Due to his physical strength, ENS Knowlton did not trim down elevator as the aircraft accelerated toward 100 knots; in fact, due to his inexperience, he may have trimmed incorrectly, putting in more up elevator. d. As ENS Knowlton was climbing to pattern altitude, he did not see the aircraft established on downwind so he began his crosswind turn. Due to ENS Knowlton’s large size, LCDR Rainey was unable to see the conflicting traffic. e. Hearing the first call, LCDR Rainey probably cautioned ENS Knowlton to check for traffic. Hearing the second call, she took immediate action and told ENS Knowlton she had the aircraft as she initiated a turn toward an upwind heading. f. As the aircraft was rolling from a climbing left turn to a climbing right turn, ENS Knowlton released" }, { "docid": "18711885", "title": "", "text": "aircraft should have been at.” Witnesses also testified that Ensign Knowlton made an early crosswind turn; this early turn prompted two radio transmissions. Captain Charles E. Guthrie, a flight instructor riding in another aircraft in the pattern, cautioned Lieutenant Commander Rainey: “Aircraft turning crosswind, you’re cutting somebody out.” Similarly, Lieutenant Colonel David I. Habermacher, Jr., a flight instructor in the aircraft forced out of the pattern, transmitted the warning: “Aircraft turning crosswind, you’re cutting us out. Heads up.” Lieutenant Commander Rainey did not verbally respond to these radio transmissions. Witnesses testified, however, that following these transmissions Lieutenant Commander Rainey’s aircraft banked sharply to the right. While the threatened midair collision with Lieutenant Colonel Habermacher’s aircraft was thus avoided, the aircraft piloted by Lieutenant Commander Rainey rapidly lost altitude, crashed in a wooded area two miles southeast of Middleton Field, and burned. Neither Lieutenant Commander Rainey nor Ensign Knowlton survived the crash. On July 14, 1982 Lieutenant Colonel Habermacher directed Lieutenant Commander William C. Morgan, Jr. to conduct an informal investigation into the circumstances surrounding the crash. On September 1, 1982 Lieutenant Commander Morgan reported, in writing, his findings of fact, opinions and recommendations pursuant to the requirements established by the Judge Advocate General. Lieutenant Commander Morgan’s report lists as an opinion that pilot error was “[t]he most probable cause of the accident.” Rainey and Knowlton disagree with Lieutenant Commander Morgan’s opinion. In a letter written to Lieutenant Commander Morgan about the “aircraft mishap,” Rainey, also a flight instructor with the United States Navy, concluded that the mishap was not the result of pilot error but more probably “caused by some form of pneumatic sensing/fuel flow malfunction, probably in the fuel control unit.” According to Rainey, this malfunction prompted an inflight “power interruption” or “rollback” making it impossible for Lieutenant Commander Rainey to sustain sufficient power to maintain flight. Knowlton agreed with Rainey’s conclusion and on April 15, 1983 Rainey and Knowlton filed separate suits in the United States District Court for the Northern District of Florida, alleging negligence and strict product liability causes of action. Beech Aircraft Corporation, the manufacturer" }, { "docid": "18711894", "title": "", "text": "party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” Rule 106 is based on the “rule of completeness,” and seeks to avoid the unfairness inherent in “the misleading impression created by taking matters out of context.” Fed.R.Evid. 106 advisory committee note. Here, Rainey was questioned about a letter he had written to Lieutenant Commander Morgan. The defendants questioned Rainey about several statements in this letter that, in isolation, seemed to support the defendants’ position that pilot error caused the crash. Mr. Larry, counsel for Rainey and Knowlton, sought to place these statements in perspective by questioning Rainey about paragraph five of the letter. In paragraph five, Rainey had concluded that “[t]he most probale [sic] primary cause factor of this aircraft mishap is a loss of useful power (or rollback) caused by some form of pneumatic sensing/fuel flow malfunction.” This statement would have placed the prior statements in context and clearly rebutted the misleading impression created by the prior statements alone. The court, therefore, erred in permitting the defendants to examine Rainey about portions of his letter while prohibiting cross-examination about other/relevant portions. Because paragraph, five of the letter would have harmonized the prior statements with Rainey’s stance at trial, the jury was given an incomplete and misleading impression of Rainey’s position. Under the “rule of completeness” embodied in Rule 106, the limitation of Rainey’s testimony was thus inherently unfair and an abuse of discretion. Rainey and Knowlton are entitled to a new trial. IV. We hold that the trial judge committed reversible error in 1) admitting into evidence the evaluative conclusions and opinions contained in Lieutenant Commander Morgan’s investigative report and 2) limiting Rainey’s trial testimony. We therefore reverse the judgment entered against Rainey and Knowlton and remand for a new trial. REVERSED AND REMANDED. . Rainey brought suit individually, as the personal representative of his wife’s estate, and on behalf of his minor children, Cynthia Ann Rainey and Katharine Marie Rainey. Knowlton sued individually, as the personal representative of" }, { "docid": "18711896", "title": "", "text": "her husband’s estate, and on behalf of her minor children, Ramsey Nia Knowlton and Branigan McDermott Knowlton. By order dated March 20, 1984 the two cases were consolidated \"for all purposes including consolidation for trial.” . A “touch and go” is a training exercise employed to familiarize students with takeoffs and landings. After takeoff, the student circles the airfield in an oval or racetrack pattern and then lands the aircraft. Upon landing, the student does not stop the craft, but accelerates to take off again. . It is, of course, impossible to determine whether Lieutenant Commander Rainey or Ensign Knowlton was in control of the aircraft at this time. Witnesses knowledgeable in flight instruction, however, testified that Lieutenant Commander Rainey, a trained pilot and flight instructor, would, under these circumstances, assume control over the aircraft. . Rainey and Knowlton objected to the admissibility of several opinions contained in Lieutenant Commander Morgan’s investigative report. Rainey and Knowlton also objected to the restriction of Rainey’s trial testimony. These objections are now raised on appeal. . On March 20, 1984, at the pretrial conference, the district court ruled that Lieutenant Commander Morgan’s report was trustworthy and admissible but \"only on its factual findings and would not be admissible insofar as any opinions or conclusions are concerned.\" On July 10, 1984, the day before trial, the district court reversed in part its prior ruling. At that time, the judge decided to admit into evidence the opinions and conclusions contained in the investigative report. In light of the court's ruling, Rainey and Knowlton requested an opportunity to review Lieútenant Commander Morgan's report and \"leave, in the event we so decide, to call as a witness such person or persons who might not have been called at this trial, but who could present evidence concerning that conclusion [that pilot error was the \"most probable cause” of the crash] and the trustworthiness of it.” The district court granted the request. . The following opinions were admitted into evidence: 1. Examination of the findings of fact, aircraft history, and inspection records indicate no irregularities which can be specified" } ]

[ { "docid": "22447480", "title": "", "text": "power to transfer cases. We reversed, holding that jorum non conveniens was not applicable in antitrust suits. United States v. National City Lines, 334 U. S. 573 (June 7, 1948). After September 1, 1948, the effective date of the present Judicial Code, respondents filed a new motion under the doctrine of jorum non conveniens, citing § 1404 (a), which reads as follows: “For the comvenieneé of parties and witnesses, in the interest of justice, a district court'may transfer any civil action to any other district or division where it might have been brought.” Again the District Court below granted the motion. It ordered the case transferred. 80 F. Supp. 734 (1948). The Government thereupon submitted in this Court a motion for leave to file petition for writ of certiorari. We assigned the case for hearing on this motion. ' 335 U. S. 897 (1948). In taking the position that the District Court- lacked authority to enter its order of transfer, the Government has advanced many of the arguments which we have already considered today — and rejected — in Ex parte Collett, ante, p. 55, and Kilpatrick v. Texas & Pacific R. Co., ante, p. 75, in which we held that actions under the Federal Employers’ Liability Act were now subject to the doctrine of jorum non conveniens. The Government contends, for example, that Congress intended § 1404 (a) to apply only to actions the venue provisions of which were formerly contained .in Title 28, rather than to. “any civil action” (the venue requirements in antitrust cases, are defined in 15 U. S! C. § 22; in Liability Act cases, 45 U. S. C. § 56); and that the legislative history establishes very clearly that Congress had no desire substantially to change the law — indeed, the Government urges us to disregard the reviser’s notes which were printed in the House Reports. We cannot accept this position for the reasons discussed in our previous decisions today. The reviser’s notes are so obviously authoritative in perceiving the meaning of the Code that the Government itself, in discussing a section other than" } ]

[ { "docid": "3061093", "title": "", "text": "be a rather empty declaration. It would be reasonable and just that, in such an instance, a constructive continuity in the wrongful acts of the defendant should ensue for an indefinite time, to the end that' the defendant still be subject to suit in the same venue that was open to plaintiff when the wrongs were committed. This points to the terms of § 1391(c), the most comprehensive general corporation venue section. It refers to corporations only, and, in doing so, uses the words “corporation” and “it”, but no “he”. The defendant by engaging in such business, became ipso jure a resident of the Northern District of Texas, as declared in § 1391(c). It would not, however, have become any more a resident of the Dallas Division than of the Amarillo Division of such district, even if it also had been doing business in the Dallas Division at the same time. Now, nearing the close this Court is mindful that the Supreme Court of the United States in United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226, held that, the relief of forum non conveniens is authorized in antitrust suits under the provisions of Title 28, § 1404(a) of the Judicial Code and that conclusion finds further confirmation in the ease of Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, both written by Chief Justice Vinson. That circumstance, however, does not touch this lawsuit. The defendant here has not even sought any action under the aforesaid statute governing resort to a claim of forum non conveniens and could not sustain any entitlement thereunder without showing that the desired change of venue would be for the convenience of parties and witnesses, and in the interest of justice. The defendant, instead, stakes its motion on Title 28, § 1393(a), which says nothing about forum non conveniens. The defendant’s motion for transfer of venue herein is overruled and an order accordingly will be drawn by defendant’s counsel and presented promptly for the further attention of the Court. . “Sec. 51. [Civil suits; where" }, { "docid": "22080853", "title": "", "text": "the Supreme Court stated with respect to 28 U.S.C. § 1391(b) that: [I]n the unusual case in which it is not clear that the claim arose in only one specific district, a plaintiff may choose between those two (or conceivably even more) districts that with approximately equal plausibility . . may be assigned as the locus of the claim. Leroy v. Great Western United Corp.,U.S. -, 99 S.Ct. 2710, 2718, 61 L.Ed.2d 464 (1979) (footnote omitted). The language of section 13a-1 supports even broader venue than merely where a claim “arose.” We hold that in this case Savage’s action in placing telephone calls to the Central District of California as an integral part of a scheme, centered in California and perpetrated upon clients of AITC located in California, which allegedly violated the Act “occurred” within the Central District for the purposes of the venue provisions of 7 U.S.C. § 13a-1. Having concluded that the district court properly could entertain the CFTC suit, we still must consider whether the district court erred by refusing to transfer the case to Chicago. At the time the court so refused, the three remaining defendants were located in Chicago and most of the CFTC officials were located in Chicago or Washington. AITC customers and records were in California. Jurisdiction in the Chicago district court clearly would have existed. Section 1404(a) of the Judicial Code provides that a court in which suit was filed with proper venue: “For the con venience of parties and witnesses, in the interest of justice, . . . may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). This section admittedly applies to actions governed by special venue provisions. Ex parte Collett, 337 U.S. 55, 58-59, 69 S.Ct. 944, 93 L.Ed. 1207 (1949). The Supreme Court has noted that section 1404(a) transfer is available “upon a lesser showing of inconvenience” than that required for a forum non conveniens dismissal. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955). Weighing of the factors for and" }, { "docid": "1469463", "title": "", "text": "of the Federal Employers’ Liability Act. The language of Sec. 1404(a), Title 28 U.S. C.A. is clear and unambiguous and effects no change or modification of a plaintiff’s rights under Sec. 6 of the Federal Employers’ Liability Act. In Ex parte Collett, 337 U.S. 55, 60, 69 S.Ct. 944, 947, 959, the Court stated: “Section 6 of the Liability Act defines the proper forum; § 1404(a) of the Code deals with the right to transfer an action properly brought. The two sections deal with two separate and distinct problems.” The doctrine of forum non conveniens is applicable to actions under the Federal Employers’ Liability Act. Ex Parte Collett, supra. As the court said in that case, 337 U.S. at page 60, 69 S.Ct. at page 947: “Section 1404(a) does not limit or otherwise modify any right granted in § 6 of the Liability Act or elsewhere to 'bring suit in a particular district.” This action has been properly brought in this district. The question that must now be determined is whether or not, under the provisions of Section 1404(a) of Title 28 U.S.C.A., the facts in this case warrant the granting of defendant’s motion to transfer this cause to the United States District Court for the District 6f Massachusetts. Sec. 1404(a) of the U.S.C.A. provides: “Section 1404. Ohange of Venue (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” In essence, the section just quoted is a codification of the doctrine of forum non conveniens and does not alter the rule set forth in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. Cf. Auburn Capitol Theatre Corp. et al. v. Schine Chain Theatres, Inc. et al., D.C., 83 F.Supp. 872. It is significant that in the Reviser’s notes, Title 28 U.S.C.A., it is stated that Section 1404(a) “was drafted in accordance with the doctrine of forum non conveniens.” What circumstances must be present in order to justify or require the" }, { "docid": "3061081", "title": "", "text": "under such economic compulsion, sold out his business and brings this suit to recover his alleged damages. The suit was filed June 13, 1963, in the United States District Court for the Northern District of Texas, Amarillo Division, which includes Deaf Smith County and much other area in that general part of the Panhandle. The defendant corporation was duly served with proper summons and it has filed a timely motion for transfer of the suit from the Amarillo Division to the Dallas Division of the Northern District of Texas. The Question at Issue Whether the defendant is entitled to demand a transfer of venue herein from the Amarillo Division to the Dallas Division in the Northern District of Texas. The statutory venue provisions deemed relevant by the defendant’s motion to change the venue in this case, as cited by defendant in its brief, are as follows: § 15 of Title 15 of the United States Code, being a part of the Clayton Act. § 22 of said Title 15 to-wit: “Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.” The other provision specified by the defendant is Title 28 of the U.S.Code, § 1393(a), to-wit: “Except as otherwise provided, any civil action, not of a local nature, against a single defendant in a district containing more than one division must be brought in the division where he resides.” The plaintiff, however, invokes still another venue provision, that is, Title 28, § 1391(c), to-wit: “A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.” The position of the defendant herein that the venue of this suit, at its" }, { "docid": "21243612", "title": "", "text": "revised the Judicial Code and enacted Sec. 1404(a). This section of Title 28 provides that for the convenience of the parties and witnesses, and in the interest of justice, a civil action may be transferred to any district or division where it might have been brought originally. The first Supreme Court construction of Sec. 1404(a) is found in a series of cases decided on May 31, 1949. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207; Kilpatrick v. Texas & Pacific R. Co., 337 U.S. 75, 69 S.Ct. 953, 93 L.Ed. 1223. Included in the cases handed down on that date was United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226, in which the court held that the section applied to antitrust actions. The relief sought by the defendants is within the provisions of the statute since both defendants have their principal places of business in the Eastern District of Michigan and consequently the action could have been brought in that district. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254, decided June 13, 1960. In determining whether a case should be transferred to another district under the provisions of Sec. 1404(a), the right to determine the balance of convenience between the litigants is within the sound discretion of the District Court and unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055; Sun Oil Co. v. Lederle, 6 Cir., 199 F.2d 423; Morehead v. Barksdale, 4 Cir., 263 F.2d 117; Fannin v. Jones, 6 Cir., 229 F.2d 368. The statute requires the moving party to show more than a limited degree of added convenience for trying the case in a different jurisdiction. It requires a strong and preponderant balance in favor of the defendant before the plaintiff’s choice of a forum will be denied. In considering the motion the court is limited to the three factors specifically mentioned in the statute, namely, convenience of" }, { "docid": "4681504", "title": "", "text": "337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207. However, a divided court recently held that Section 1404(a) does more than codify the existing law on forum non conveniens and requires the application of the doctrine with a difference, inasmuch as dismissal of the action, the harshest aspect of the doctrine, is eliminated by the provision in Section 1404(a) for transfer. Consequently, coui’ts are now permitted to grant transfers upon a lesser showing of convenience than was the case under forum non conveniens. Norwood v. Kirkpatrick, 1955, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789. The present view, as stated in the Norwood case, does not mean that the plaintiff’s choice of forum can be disregarded or that the relevant factors bearing on a change of venue are different, but only that the court’s discretion is broader. In Gulf Oil Co. v. Gilbert, 1947, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, such relevant factors under the doctrine of forum non conveniens were stated as follows: “ * * * An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant; Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. * *” Section 6 of the Employers’ Liability Act gives the plaintiff an option of bringing his action “in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action.” Section 1404(a) of the Judicial Code does not effect an implied repeal of this provision, Ex parte Collett, supra, 337 U.S. at page 60, 69 S.Ct. at page 947, and it is equally clear that the right given thereby" }, { "docid": "10684664", "title": "", "text": "located at Steubenville, Ohio, and Monessen, Pennsylvania. It is also undisputed that the action against Ford could have been brought in the Eastern District of Michigan, Southern Division, since Ford’s corporate headquarters is at Dearborn and its only steelmaking plant whose process is alleged to have infringed the Suess patent is located at Dearborn. However, at the outset the plaintiffs argue that transfer should be denied because of a limitation placed on § 1404 (a) by 28 U.S.C. § 1400(b). Under § 1400(b) a plaintiff in a patent infringement action may bring suit “where the defendant resides,” i. e. in the state of incorporation of a corporate defendant, even though no acts of infringement have occurred there. The plaintiffs contend that this indicates a Congressional intent to grant plaintiffs in patent infringement actions an absolute right to sue a defendant at his residence or corporate domicile. Thus, it is argued, ordering a transfer under § 1404(a) would frustrate this Congressional intent. Consequently, the plaintiffs assert that § 1404(a) transfer is unavailable when an alleged patent infringer is sued where he resides rather than where some act of infringement occurs. No case has been cited to this Court nor has this Court found any authority so holding. Both §§ 1400(b) and 1404(a) were part of the 1948 revision of the Judicial Code. Nothing in either section or in any other provision of the Judicial Code purports to restrict the application of § 1404(a) in patent suits. In Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, 10 A.L.R.2d 921 (1949); Kilpatrick v. Texas & Pacific Ry. Co., 337 U.S. 75, 69 S.Ct. 953, 93 L.Ed. 1223 (1949) and United States v. National City Lines, Inc., 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226 (1949) the United States Supreme Court held that § 1404(a) was applicable to any civil action regardless of whether venue was founded upon general venue statutes or special venue statutes. In Cinema Amusements, Inc. v. Loew’s, Inc., 85 F. Supp. 319, 322-323 (D.Del.1949), a civil antitrust suit, this Court rejected the argument that a" }, { "docid": "3061094", "title": "", "text": "U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226, held that, the relief of forum non conveniens is authorized in antitrust suits under the provisions of Title 28, § 1404(a) of the Judicial Code and that conclusion finds further confirmation in the ease of Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, both written by Chief Justice Vinson. That circumstance, however, does not touch this lawsuit. The defendant here has not even sought any action under the aforesaid statute governing resort to a claim of forum non conveniens and could not sustain any entitlement thereunder without showing that the desired change of venue would be for the convenience of parties and witnesses, and in the interest of justice. The defendant, instead, stakes its motion on Title 28, § 1393(a), which says nothing about forum non conveniens. The defendant’s motion for transfer of venue herein is overruled and an order accordingly will be drawn by defendant’s counsel and presented promptly for the further attention of the Court. . “Sec. 51. [Civil suits; where to be brought.] Except as provided in the five succeeding sections, no person shall be arrested in one district for trial in an other, in any civil action before a district court; and, except as provided in the six succeeding sections, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof Tie is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. [36 Stat.L. 1101.]” “Sec. 53. [Districts containing more than one division; where suit to be brought; transfer of criminal cases.] When a district contains more than one division, every suit not of a local nature against a single defendant must be brought in the division where he resides; but if there are two or more defendants residing in different divisions of the district it may be brought" }, { "docid": "7758202", "title": "", "text": "Certain individual defendants residing in the Eastern District of New York who were served with process there moved to vacate service and to dismiss on the ground of improper venue, relying upon Section 1391(b) of Title 28 U.S.C.A.: “A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought in the judicial district where all defendants reside, except as otherwise provided by law.” A venue provision is also contained in the Clayton Act, which authorizes suit “in any district court of the United States in the district in which the defendant resides or is found or has an agent, * 15 U.S.C.A. § 15. Section 1392(a) of Title 28 provides: “Any civil action, not of a local nature, against defendants residing in different districts in the same State may be brought in any of such districts.” Since an anti-trust suit is not of a “local nature” venue as to the defendants is proper in the Southern District of New York. The special venue provisions contained in the anti-trust laws were intended as an enlargement of venue and to broaden the choice of a forum available to plaintiffs in anti-trust actions. United States v. Scophony Corporation of America, 333 U.S. 795, 804, 68 S.Ct. 855, 92 L.Ed 1091; Abrams v. Bendix Home Appliances, Inc., D.C., 96 F.Supp. 3. The general venue provisions now contained in New Title 28, Sections 1391 et seq., effective September 1, 1948, may be considered supplementary to, and not in limitation of, the venue provisions contained in the anti-trust laws and other special statutes. Thus, for example, the forum non conveniens provision, Section 1404(a) of Title 28, has been held applicable to anti-trust suits and the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. United States v. National City Lines, Inc., 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226; Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207. The motions are denied. Motions by Granite Cutters International Association to' Dismiss the Complaint for Improper Venue. Service of process was made upon the International Union by" }, { "docid": "4681503", "title": "", "text": "JOHN L. MILLER, District Judge. This is a suit brought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. The defendant has moved for an order transferring the action to the District Court for the Northern District of Ohio, Eastern Division, at Cleveland, pursuant to Section 1404(a) of the Judicial Code, 28 U.S.C.A. § 1404(a), which provides that “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The cause of action upon which the suit is based arose at Canton, Ohio, and it is conceded that the case might have been brought either in this court or in the district court at Cleveland. Notwithstanding the provisions of Section 6 of the Federal Employers’ Liability Act, 45 U.S.C.A. § 56, the Supreme Court has held that Section 1404(a) of Title 28 permits the application of the doctrine forum non conveniens in cases brought under the F.E.L.A. Ex parte Collett, 1949, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207. However, a divided court recently held that Section 1404(a) does more than codify the existing law on forum non conveniens and requires the application of the doctrine with a difference, inasmuch as dismissal of the action, the harshest aspect of the doctrine, is eliminated by the provision in Section 1404(a) for transfer. Consequently, coui’ts are now permitted to grant transfers upon a lesser showing of convenience than was the case under forum non conveniens. Norwood v. Kirkpatrick, 1955, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789. The present view, as stated in the Norwood case, does not mean that the plaintiff’s choice of forum can be disregarded or that the relevant factors bearing on a change of venue are different, but only that the court’s discretion is broader. In Gulf Oil Co. v. Gilbert, 1947, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, such relevant factors under the doctrine of forum non conveniens were stated as follows: “ * * *" }, { "docid": "10684665", "title": "", "text": "infringer is sued where he resides rather than where some act of infringement occurs. No case has been cited to this Court nor has this Court found any authority so holding. Both §§ 1400(b) and 1404(a) were part of the 1948 revision of the Judicial Code. Nothing in either section or in any other provision of the Judicial Code purports to restrict the application of § 1404(a) in patent suits. In Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, 10 A.L.R.2d 921 (1949); Kilpatrick v. Texas & Pacific Ry. Co., 337 U.S. 75, 69 S.Ct. 953, 93 L.Ed. 1223 (1949) and United States v. National City Lines, Inc., 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226 (1949) the United States Supreme Court held that § 1404(a) was applicable to any civil action regardless of whether venue was founded upon general venue statutes or special venue statutes. In Cinema Amusements, Inc. v. Loew’s, Inc., 85 F. Supp. 319, 322-323 (D.Del.1949), a civil antitrust suit, this Court rejected the argument that a § 1404(a) transfer could not be ordered where the corporate defendants were domiciled in the forum state. The argument carries no more logic in a patent infringement suit. Therefore it is obvious that § 1400(b) does not preclude this Court from transferring a case under § 1404(a) even though Delaware is the state “where the defendant resides.” Having found that there is power to transfer, the question becomes whether there has been a sufficient showing, in light of the three statutory criteria— convenience of parties, convenience of witnesses and interest of justice — to cause this Court to order a change of venue. Miracle Stretch Underwear Corp. v. Alba Hosiery Mills, Inc., 136 F. Supp. 508, 510 (D.Del.1955). Whether to permit the transfer of a case to another district or division under § 1404(a) is a matter which rests in the sound discretion of the Court. Berk v. Willys-Overland Motors, Inc., 107 F.Supp. 643, 644 (D.Del.1952). The burden of showing that transfer is warranted is on the moving party. Kewanee Oil Co. v. M &" }, { "docid": "21243611", "title": "", "text": "was not subject to the application of the doctrine of forum non conveniens. In the case of United States v. National City Lines, 334 U.S. 573, 68 S.Ct. 1169, 92 L.Ed. 1584, the Supreme Court pointed out that the legislative history of Section 12 of the Clayton Act clearly established that Congress intended to leave no room for judicial discretion to apply the doctrine of forum non conveniens to deprive the plaintiff of the choice of forum given by that section. It was emphasized in the opinion that the purpose of Congress was clear to confer upon the plaintiff in civil antitrust proceedings against corporations the right of choice among the specific venues and that the considerations of policy which might otherwise justify the exercise of judicial discretion in such matters had become irrelevant. The purpose of the advocates of change was to give the plaintiff a right to bring suit and have it tried in the district where the defendant had committed violations of the Act and had inflicted forbidden injuries. In 1948 Congress revised the Judicial Code and enacted Sec. 1404(a). This section of Title 28 provides that for the convenience of the parties and witnesses, and in the interest of justice, a civil action may be transferred to any district or division where it might have been brought originally. The first Supreme Court construction of Sec. 1404(a) is found in a series of cases decided on May 31, 1949. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207; Kilpatrick v. Texas & Pacific R. Co., 337 U.S. 75, 69 S.Ct. 953, 93 L.Ed. 1223. Included in the cases handed down on that date was United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226, in which the court held that the section applied to antitrust actions. The relief sought by the defendants is within the provisions of the statute since both defendants have their principal places of business in the Eastern District of Michigan and consequently the action could have been brought in that district. Hoffman v. Blaski, 363" }, { "docid": "22080854", "title": "", "text": "the case to Chicago. At the time the court so refused, the three remaining defendants were located in Chicago and most of the CFTC officials were located in Chicago or Washington. AITC customers and records were in California. Jurisdiction in the Chicago district court clearly would have existed. Section 1404(a) of the Judicial Code provides that a court in which suit was filed with proper venue: “For the con venience of parties and witnesses, in the interest of justice, . . . may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). This section admittedly applies to actions governed by special venue provisions. Ex parte Collett, 337 U.S. 55, 58-59, 69 S.Ct. 944, 93 L.Ed. 1207 (1949). The Supreme Court has noted that section 1404(a) transfer is available “upon a lesser showing of inconvenience” than that required for a forum non conveniens dismissal. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955). Weighing of the factors for and against transfer involves subtle considerations and is best left to the discretion of the trial judge. See Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805,11 L.Ed.2d 945 (1964); 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction § 3847. Savage had the burden to justify by particular circumstances that the transferor forum was inappropriate. Starnes v. McGuire, 168 U.S.App.D.C. 4, 11, 512 F.2d 918, 925 (D.C. Cir. 1974) (en banc). See 1 Moore’s Federal Practice ¶ 0.145[5]. We do not find, on this record, that the district court abused its broad discretion in refusing to transfer under section 1404(a) in this case. While it is true that Chicago proceedings would have been more convenient to Savage, only in rare instances have appellate courts overridden a trial court’s decision not to transfer. E. g., Chicago, Rock Island & Pacific R. R. v. Hugh Breeding, Inc., 247 F.2d 217 (10th Cir. 1957); Southern Ry. v. Madden, 235 F.2d 198 (4th Cir.), cert. denied, 352 U.S. 953, 77 S.Ct. 328, 1" }, { "docid": "22411042", "title": "", "text": "examine the district court’s exercise of its discretion in denying Volkswagen’s transfer motion. 1. The preliminary question under § 1404(a) is whether, a civil action “might have been brought” in the destination venue. Volkswagen seeks to transfer this case to the Dallas Division of the Northern District of Texas. All agree that this civil action originally could have been filed in the Dallas Division. See 28 U.S.C. § 1391. 2. Beyond this preliminary and undisputed question, the parties sharply disagree. The first disputed issue is whether the district court, by applying the forum non conveniens dismissal standard, erred by giving inordinate weight to the plaintiffs’ choice of venue. We have noted earlier that there is nothing that ties this case to the Marshall Division except plaintiffs’ choice of venue. It has indeed been suggested that this statutorily granted choice is inviolable. A principal disputed question, then, is what role does a plaintiffs choice of venue have in the venue transfer analysis. We now turn to address this question. (a) When no special, restrictive venue statute applies, the general venue statute, 28 U.S.C. § 1391, controls a plaintiffs choice of venue. Under § 1391(a)(1), a diversity action may be brought in “a judicial district where any defendant resides, if all defendants reside in the same State.” Under § 1391(c), when a suit is filed in a multi-district state, like Texas, a corporation is “deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State.” Because large corporations, like Volkswagen, often have sufficient contacts to satisfy the requirement of § 1391(c) for most, if not all, federal venues, the general venue statute “has the effect of nearly eliminating venue restrictions in suits against corporations.” 14D Wright, Miller & Cooper, Federal Practice & Procedure § 3802 (3d ed.2007) (noting also that, because of the liberal, general venue statute, “many venue disputes now are litigated as motions to transfer venue under Section 1404 of Title 28”). Congress, however, has tempered the effects of this general venue" }, { "docid": "3061092", "title": "", "text": "of the antitrust laws. Cases directly in point on this specific question are cited below. The defendant undoubtedly would have been without any ground to challenge the Amarillo Division venue if this suit had been filed and process issued at any time while it was open and active in business during the year or more its operations continued in said Division. It would be cutting things too fine to suggest that, in spite of the defendant’s said extensive and prolonged business activity there, to the alleged undoing of the plaintiff, once the defendant quit and left, the plaintiff promptly lost all recourse to said Division as a site for his suit against the defendant. Otherwise the deliverance of the Supreme Court of the United States in United States v. Scophony Corp., 333 U.S. 795, 808, 68 S.Ct. 855, 92 L.Ed. 1091, that “A foreign corporation no longer could come to a district, perpetrate there the injuries outlawed, and then by retreating or even without retreating to its headquarters defeat or delay the retribution due.”, would be a rather empty declaration. It would be reasonable and just that, in such an instance, a constructive continuity in the wrongful acts of the defendant should ensue for an indefinite time, to the end that' the defendant still be subject to suit in the same venue that was open to plaintiff when the wrongs were committed. This points to the terms of § 1391(c), the most comprehensive general corporation venue section. It refers to corporations only, and, in doing so, uses the words “corporation” and “it”, but no “he”. The defendant by engaging in such business, became ipso jure a resident of the Northern District of Texas, as declared in § 1391(c). It would not, however, have become any more a resident of the Dallas Division than of the Amarillo Division of such district, even if it also had been doing business in the Dallas Division at the same time. Now, nearing the close this Court is mindful that the Supreme Court of the United States in United States v. National City Lines, 337" }, { "docid": "7674246", "title": "", "text": "the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). Under this statute, the burden to be met by a defendant seeking transfer is something less than a showing of forum non conveniens, the old doctrine superseded by § 1404(a). But even under § 1404(a) a plaintiff still has the right to select a proper forum of his choice and such “choice should not be disturbed unless the movant demonstrates that the balance of convenience and justice weighs heavily in favor of transfer.” Security National Bank v. Republic National Life Insurance Co., 364 F.Supp. 585 (S.D.N.Y.1973). In deciding a motion to transfer under this section, a court must consider 1) the convenience of the parties; 2) the convenience of the witnesses; and 3) the interests of justice. Further, a case may only be transferred to a court in which the case “might have been brought.” In considering the last requirement first we conclude that this ease might have been brought in the Northern District of Oklahoma. Defendant Liberty is incorporated in the State of Massachusetts with its principal place of business there and has at all relevant times been authorized to do business and is doing business in the Northern District of Oklahoma. 28 U.S.C. § 1391(a) provides that venue in diversity actions such as this lies “in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose.” Corporate residence for purpose of venue is “any judicial district in which it is incorporated or licensed to do business or is doing business . . . .” 28 U.S.C. § 1391(c). Liberty is the sole defendant. The Northern District of Oklahoma is therefore a district in which this case might have been brought. In considering the convenience of the parties we find the equities to be fairly balanced. Neither defendant nor plaintiff has shown that any real inconvenience would result if the case were to be tried in the Southern District of New York. CSC is incorporated" }, { "docid": "3061087", "title": "", "text": "L.Ed. 1584, as reflected in the composite excerpts next noted. “The principal question, and the only one we find it necessary to consider, is whether the choice of forums given to the plaintiff by § 12 [of the Clayton Act] is subject to qualification by judicial application of the doctrine of forum non conveniens.” (P. 574, 68 S.Ct. p. 1170.) “It [§ 7] intended trial to take place in the district specified by the statute and selected by the plaintiff.” (P. 582, 68 S.Ct. p. 1174.) The premise here taken is that the plaintiff had the statutory right under the antitrust laws to make his priority selection of the Amarillo venue as the place to file and try this lawsuit. This being true in view of Title 15, § 22 of the Code. The defendant, in trying to upset the plaintiff’s choice of forum, points to Title 28, § 1393(a). The decisive point of distinction, which confronts the defendant, is that the plaintiff’s choice of venue relies on a specific rule of venue — that contained in the antitrust laws — and, on the other hand, the defendant’s position relies only on a general venue provision, but even so, the defendant cannot claim even that much foundation, unless it is an “he”, as specified in said general venue provision. The position taken by the plaintiff here is identical with that sustained by the court in Goldlawr, Inc. v. Shubert, D.C., 169 F.Supp. 677. The only variation between that case and the case here is that in one the antitrust venue provision is § 15 and the venue provision here is § 22, the latter being the particular corporation defendant provision. Another antitrust case, equally parallel, is Kaeppler v. James H. Matthews & Co., 180 F.Supp. 691. The ease of Ex Parte Collett, 337 U.S. 55, 59, 69 S.Ct. 944, 946, 93 L.Ed. 1207, fortifies the distinction that has been made in the above two district court cases, which have been cited with footnote excerpts, and, in respect to the distinction between general and specific provisions regulating venue, the Supreme Court" }, { "docid": "7758203", "title": "", "text": "intended as an enlargement of venue and to broaden the choice of a forum available to plaintiffs in anti-trust actions. United States v. Scophony Corporation of America, 333 U.S. 795, 804, 68 S.Ct. 855, 92 L.Ed 1091; Abrams v. Bendix Home Appliances, Inc., D.C., 96 F.Supp. 3. The general venue provisions now contained in New Title 28, Sections 1391 et seq., effective September 1, 1948, may be considered supplementary to, and not in limitation of, the venue provisions contained in the anti-trust laws and other special statutes. Thus, for example, the forum non conveniens provision, Section 1404(a) of Title 28, has been held applicable to anti-trust suits and the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. United States v. National City Lines, Inc., 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226; Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207. The motions are denied. Motions by Granite Cutters International Association to' Dismiss the Complaint for Improper Venue. Service of process was made upon the International Union by personal service upon Michael De Santis, a member of its Executive Council, in the Eastern District of New York, where he resides. The International urges that the action should be dismissed because it does not come within “any of the permissive venue provisions of the anti-trust laws.” The contention is that it maintains its only office in Quincy, Massachusetts, from which it conducts all its business. The nature and extent of its activities, its relationship to its Locals and the duties of De Santis are put at issue. The questions which need necessarily be considered cannot be determined upon the present papers. ■Accordingly, this motion is denied with leave to renew following the taking of depositions, or, as has been suggested by counsel for the plaintiffs, after a reference to a Master to take proof on this issue. Abrams v. Bendix Home Appliances Inc., D.C., 92 F.Supp. 633. In view of the early date set for trial this matter requires immediate attention but failure to conclude the inquiry in time shall not be deemed an" }, { "docid": "7208475", "title": "", "text": "the present case the “special venue provision contained in some other title of the United States Code” to which Section 1391 (c) is applicable is Section 22 of Title 15, Section 12 of the Clayton Act. Judge Ryan, in Auburn Capitol Theatre Corp. v. Schine Chain Theatres, D.C.S.D.N.Y.1949, 83 F.Supp. 872, at page 874, referring especially to Section 1392 but also to Section 1391(c), states: “Anti-trust plaintiffs are not deprived of the benefits of these general venue provisions. * * * The venue provisions of the anti-trust laws were enacted to give anti-trust plaintiffs special venue privileges in addition to those granted by general venue statutes. United States v. National City Lines, 334 U.S. 573, 68 S.Ct. 1169 [92 L.Ed. 1584] ; they were intended to facilitate the prosecution of anti-trust actions, not to replace or make unavailable general venue provisions.” There is no rule of statutory construction which would restrict the' applicability of Section 1391(c)’s definition of residence of defendant corporations for venue purposes to the other subsections of 1391, namely, 1391(a) and (b), quoted supra, which regulate the venue for all civil actions except those subject to special venue statutes. Cf. Ex parte Collett, 1949, 337, U.S. 55, 58-59, 69 S.Ct. 944, 93 L.Ed. 1207; United States v. Nat. City Lines, 1949, 337 U.S. 78, 80-81, 69 S.Ct. 955, 93 L.Ed. 1226. It should be pointed out that antitrust defendants are adequately protected against being forced to defend suits in -inconvenient forums by the transfer of venue section of the Judicial Code, 1404(a); United States v. Nat. City Lines, supra; Paramount Pictures, Inc., v. Rodney, 3 Cir., 186 F.2d 111. Therefore, under Section 12 of the Clayton Act as modified by Section 1391(c) of the Judicial Code, Eagle Lion, because it is licensed to do business as a foreign corporation in Pennsylvania, is subject to the present antitrust actions brought in this District Court for the Eastern District of Pennsylvania. Accordingly, defendant Eagle Lion’s motions to dismiss the complaints as to it are denied. . Act of July 2, 1890, 26 Stat. 209, as amended, 15 U.S.C.A. .§" }, { "docid": "21896498", "title": "", "text": "witnesses from Dallas, and that his right to a fair trial had been jeopardized. By order of October 16, 1975, the district court denied the appellant’s renewed motion to transfer. B. The Decision Not to Transfer Appellant first argues that, after the hearing of October 15, 1975, the district court should have exercised its discretion to transfer the case to Dallas. See Brief for Appellant at 21-37. The relevant statute, 28 U.S.C. § 1404(a) (1970), provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” This section applies to actions governed by special venue provisions, Ex parte Collett, 337 U.S. 55, 58-59, 69 S.Ct. 944, 93 L.Ed. 1207 (1949); see Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S. Ct. 1470, 4 L.Ed.2d 1540 (1960), including the special venue provisions of the federal securities statutes, see Wyndham Associates v. Bintliff, 398 F.2d 614 (2d Cir.), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968). See also United States v. Na tional City Lines, Inc., 337 U.S. 78, 85, 69 S.Ct. 955, 93 L.Ed. 1226 (1949) (Douglas, J., dissenting). Section 1404(a) finds its origins in the doctrine of forum non conveniens. See generally Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). However, because section 1404(a) contemplates transfer in addition to dismissal to remedy the plaintiff’s choice of an inconvenient forum, it is evident “Congress intended to do more than just codify the existing law on forum non conveniens.” Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955). Thus, section 1404(a) is a revision as well as a codification, and a transfer is available “upon a lesser showing of inconvenience” than that required for a forum non conveniens dismissal. Id. “This is not to say that the relevant factors have changed or that the plaintiff’s choice of forum is not to be considered, but only that the discretion to be" } ]

[ { "docid": "13973490", "title": "", "text": "test in workers’ compensation cases. It is whether the railroad has control of the employee or the right to control the employee. The law does not require that the railroad have full supervisory control. It requires only that the railroad, through its employees, plays “a significant supervisory role” as to the work of the injured employee. Kelley v. Southern Pacific Co., 419 U.S. 318, 327, 95 S.Ct. 472, 477, 42 L.Ed.2d 498 (1974). The second principle of law is that the question whether the injured worker was acting as an employee of the railroad at the time of the injury under the FELA is a question of fact for the jury. Baker v. Texas & Pacific Ry. Co., 359 U.S. 227, 228, 79 S.Ct. 664, 665, 3 L.Ed.2d 756 (1959). Finally, the third principle of law that guides the decision on this predominant issue in the case is the scope of judicial review of a jury verdict under the FELA. The Supreme Court defined the scope of judicial review of the jury verdict in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946). The often quoted words of the Court are: Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentia-ry basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when the evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable. In the present case we cannot say that there was a complete absence of probative facts to support the jury’s verdict that Lindsey under the FELA was an employee of the L & N Railroad at the time of his injury. Without reviewing the evidence in great detail, suffice it to say the record reveals evidence based largely upon the testimony of fellow workers that L & N directed the employees as to" } ]

[ { "docid": "1131026", "title": "", "text": "every interstate rail carrier “ * * * ghaii he Hable in damages to any person suffering injury while he is employed by such carrier in such commerce * * That language was productive of no little confusion among railroaders as to whether they were engaged in interstate or intrastate commerce at the precise moment of injury. Consequently, the 1939 amendment added the following paragraph: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” There is no doubt that the amendatory language broadened the coverage of the Act. It seems to have done so in two different ways. First, the phrase “any part of whose duties” clear ly eliminated the “moment of injury” test. The new phrase makes the general nature of the employee’s duties the controlling factor. If “any part” of those duties furthers interstate commerce, the employee is covered, even though at the precise moment of injury the specific mechanical task in which he was engaged was purely intrastate. Second, the amendment extended coverage to one not immediately engaged in furthering interstate commerce if his duties in any way closely and substantially affected the furtherance of interstate commerce. The amendment itself is stated disjunctively, that is, it covers an employee if any part of his duties further interstate commerce, or if any part of his duties in any way directly, or closely and substantially affect such commerce. If that is the sense of the Act as presently worded, we think the plaintiff here is covered by both tests. Defendant concedes that the 1939 amendment broadened the Act’s coverage but argues that, since the amendment is silent as to the period of time before the injury within which to examine the employee’s duties to determine whether “any part” of" }, { "docid": "23614899", "title": "", "text": "... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” 35 Stat. 65. A further paragraph was added to the section in 1939, and it is clear that two specific problems which the amendment sought at least to remedy were the results of this Court’s holdings that, at the moment of his injury, the employee as well as the railroad had to be engaged in interstate commerce in order to come within the coverage of § 1, and that employees engaged in construction of new facilities were not covered. S. Rep. No. 661, 76th Cong., 1st Sess. 2-3; Southern Pacific Co. v. Gileo, decided today, ante, p. 493. The amendment took the form of an expanded definition of “person . . . employed” in interstate commerce. The amendment reads: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Act . . . .” 53 Stat. 1404. No argument is made that Congress could not constitutionally include petitioner within the coverage of the Act. The argument is that the amendment was narrowly drawn to remedy specific evils and that to construe it to include petitioner would amount to inclusion in the Act of virtually all railroad employees — a result which respondent assumes is unintended and undesirable. The argument takes several forms. First, it is said that “commerce” in the Act means only transportation and that petitioner is not employed in transportation. See Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 559-560. But the interstate commerce" }, { "docid": "12750108", "title": "", "text": "no evidence of negligence on the part of the carrier or its employees was presented, or the situation was such that the alleged negligent act of defendant could not have caused the injury in whole or in part. True, plaintiff’s act in loosening the obstruction directly caused the screw to turn. But there is substantial evidence that it was because of King’s negligence that the stoker was left in such a condition that there was danger of the screw turning and that this dangerous condition was the moving cause of what occurred. The controverted evidence as to plaintiff’s and defendant’s acts was such as to support a finding that defendant or its machinist acte„d negligently, and that this negligence caused the injury. Defendant further claims that the court had no jurisdiction, since plaintiff was not in any way concerned with interstate commerce. The evidence shows that the engine had been in interstate commerce during the day. Although at the time it was not in actual use, it was ready to return to service as soon as the stoker was repaired. The fire was still burning and the steam pressure was being maintained. The statute, broadened by the 1939' amendment, now reads : “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” Despite any question as to whether plaintiff might have recovered under the original act (see New York Central Ry. v. Marcone, 281 U.S. 345, 50 S.Ct. 294, 74 L.Ed. 892), it is clear that he is within the scope of the amendment. Under the original statute experience demonstrated continued difficulty in ascertaining when the work of an employee was part of interstate commerce. The amendment, much wider in scope, was inspired by a desire to avoid such confusion. Congress’" }, { "docid": "3922404", "title": "", "text": "that such a disposition will not prejudice the party which has not prevailed on appeal. We have no way of knowing to what extent the jury reduced its award for Blue on the basis of a finding of Blue’s contributory negligence. Such a situation would and should have been avoided through the use of special interrogatories under Rule 49, Federal Rules of Civil Procedure. The judgment of the district court is reversed and the cause is remanded for a new trial as to all issues, liability as well as damages. . Title 45, U.S.C., Section 51: “Liability of common carriers by railroad, in interstate or foreign commerce, for injuries to employees from negligence; definition of employees Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia or any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such" }, { "docid": "563466", "title": "", "text": "the voluntary furnishing of information to a person in interest as to the facts concerning the injury or the death of any railroad employee (new Section 10). The pertinent portion of Chapter 685 with which we are now concerned is with the amendment to the first section. This new Act defines what is meant by employment in interstate commerce, as follows: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Act and of an Act entitled ‘An Act relating to the liability of common carriers by railroad to their employees in certain cases’ (approved April 22, 1908), as the same has been or may hereafter be amended.” The facts are sufficiently set forth in the stipulation, they will not be repeated. This case involves the construction of the Federal Employers’ Liability Act as amended by the Act of Congress, approved August 11, 1939. The Court is informed that there are no reported decisions construing this amendment. The discussions in Congress indicate that it was the intent of the lawmakers to bring within the scope of the Federal Employers’ Liability Act all employees whose work at the time of injury was not in actual interstate transportation or a part of it, but any part of whose work was in furtherance of interstate commerce, or in any way affected such commerce directly, closely and substantially. The bill, as introduced in the Senate, provided that an employee was to be considered as engaged in interstate commerce if his duties “in any way” affected interstate commerce. At one of the hearings before a Sub-committee of the Committee on the Judiciary of the Senate, the Committee, at the suggestion of Senator Austin, amended this provision by substituting the words “or in any way directly, or closely" }, { "docid": "4785772", "title": "", "text": "doctor, testifying for the defendant, stated that he believed plaintiff was suffering merely from an inferiority complex. He examined him for carbon-monoxide poisoning and found no symptoms of it whatsoever. He stated that if a certain laboratory report of 40% carbon-monoxide content in plaintiff’s blood were correct the plaintiff would be unconscious or dead. He also stated that with a 10 to 20% content, the face and mucous membrane would be cherry red from the carbon monoxide content of the blood. This factual statement is made only because appellant assigns error in the court’s instruction on the quantum of proof necessary to establish permanent injuries. Appellant contends that plaintiff does not come within the protection of the Federal Employers’ Liability Act. This Act was amended in 1939 to read: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” (Italics ours.) 45 U.S.C.A. § 51. Prior to its amendment the Act provided for the employer’s liability to an employee for injury suffered only when the employee was engaged in “such commerce” which phrase referred to “commerce between any of the several States.” Appellant argues that plaintiff, employed in the railroad’s storehouse, operating a crane which hoisted car wheels into position for repair on freight trains, some of which were used in intra- and others in inter-state commerce, was not one who could conceivably be said to be engaged in interstate commerce. However, we have before us, for construction, the amended act, not the original section. There can be no doubt but that the amendment was intended to broaden the scope of the Act to include employees whose work was related to the functioning of interstate commerce. Coucededly the relationship between the encompassed occupations and the actual transportation in interstate commerce has" }, { "docid": "14051579", "title": "", "text": "transportation of revenue freight in both interstate and intrastate commerce on the tracks and roadbed of said Track Alignment Revision began on or about January 31, 1941, and has continued since that date.” It has been stipulated that in advance of the trial the Court determine whether the plaintiff was employed in interstate commerce. This procedure was followed in Ermin v. Pennsylvania Railroad Co., D.C., 36 F.Supp. 936, and is a desirable method of determining such a question. As pointed out in the Ermin case, it is better to submit questions of this character to the Court in the absence of the jury so as to avoid confusion at the trial. The sole question presented — Was the plaintiff engaged in interstate commerce within the purview of the Federal Employers’ Liability Act as amended by the Act of Congress, approved August 11, 1939? The pertinent portion of this Act is, as follows: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as-being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Act and of an. Act entitled ‘An Act relating to the liability of common carriers by railroad to> their employees in certain cases’ (approved April 22, 1908), as the same has been or may hereafter be amended.” 53 Stat. 1404, 45 U.S.C.A. § 51. At the time the Ermin case was decided counsel in that case, who are the same counsel as appear here, stated that there were no reported decisions construing this amendment. Counsel have called the attention of the Court to the fact that since the decision in the Ermin case there have been a number of reported decisions bearing upon the subject of interstate commerce ; they are: Edwards v. Baltimore & O. R. Co., 7 Cir., 131 F.2d 366; Southern Pacific Co. v. Industrial Accident Commission and" }, { "docid": "8107058", "title": "", "text": "that the reports were replete with decisions drawing very fine distinctions in determining whether an employee was engaged in interstate commerce within the contemplation of the Act so as to entitle him to bring suit for damages thereunder for injuries incurred while in the carrier’s employ. The uncertainty had grown to such proportions that Congress, in 1939, added the following paragraph to § 1 of the Act: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Act and of an Act entitled ‘An Act relating to the liability of common carriers by railroad to their employees in certain cases’ (approved April 22, 1908), as the same has been or may hereafter be amended.” The Senate, in its report on the amendments to the Act, characterized one aim of the amendment in this manner: “1. It broadens and clarifies the law in its application to employees who may be killed or injured while in the service of a railroad company engaged in interstate or foreign commerce.” Petitioner concedes that the 1939 amendment abolishes the “moment of injury” rule of the Shanks case, supra. But it vigorously contends that, because Congress, in amending the Act, did not alter the first paragraph of § 1, it is liable only for employee injuries incurred while the railroad is “engaging in commerce” between the States. It is argued that, since the railroad was here engaged in the construction of new cars, which activity, under the “new construction” doctrine of Raymond and White, supra, is not commerce between the States, employees injured while engaging in new construction are not covered by the 1939 amendment. With this we cannot agree. The 1939 amendment to § 1 of the Act provides that “[a]ny employee of a carrier, any part" }, { "docid": "20119488", "title": "", "text": "Southeastern Pennsylvania Transportation Authority, and against plaintiff, Irving Felton. IT IS FURTHER ORDERED that this Court’s Memorandum of January 31, 1990, is vacated. . FELA, 45 U.S.C. § 51, in relevant part provides: Every common carrier by railroad while engaging in commerce between any of the several States ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter. . The Court rejects as unsupported plaintiff’s statements that he was employed at the time of his accident as a \"general helper” servicing both SEPTA's City and Regional Rail Divisions. . Although plaintiff’s Complaint does not specifically state that he is not entitled to Pennsylvania worker's compensation benefits, case law makes clear that individuals covered by the FELA are not eligible for any such additional compensation provided by State law. See New York Railroad Co. v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045 (1917). . For purposes of the present litigation, SEPTA concedes that employees of its Regional Rail Division are covered by the FELA. . The definition of \"commuter service” includes regional \"rail passenger service ... whether within or across the geographical boundaries of a State....\" 45 U.S.C. § 702. By contrast, the term \"transit service” generally refers exclusively to the subway or street railway operations within a single urban community. Omaha, 230 U.S. 324, 33 S.Ct." }, { "docid": "13087630", "title": "", "text": "a verdict for the defendant, rulings during the argument to the jury and the modification of an instruction tendered by defendant. 1. The court instructed the jury as a matter of law that the plaintiff at the time and place of the happening in question, came within the provisions of the Federal Employers’ Liability Act. Defendant contends that in so doing the court erred. At the close of the plaintiff’s evidence the court denied defendant’s motion for a directed verdict under which defendant contended “there was a failure of proof on this essential issue.” Defendant urges that, as a matter of law, the evidence fails to show a real or substantial relationship between plaintiff’s work and interstate transportation. The Federal Employers’ Liability Act, as amended in 1939,45 U.S.C.A. § 51, provides : “Every common carrier by railroad while engaging in commerce between any of the several States ' * * * shall be liable in damages', to any person suffering injury while he is employed by such carrier in ' such commerce * * * for such\" injury * * * resulting in whole '■ or in part from the negligence of any ' of the officers, agents, or employees of such carrier * * *. 'i “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of in- .. terstate or foreign commerce; or , shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the > purposes of this chapter, be considered as being employed by such carrier in such commerce and shall.be.; considered as entitled to the benefits of this chapter.” . The evidence as to the duties imposed on plaintiff and the circumstances of the accident were proved by plaintiff’s witnesses. Defendant called no witnesses on these subjects. The facts established by this evidence and the admissions of defendant’s answer show that the cars being repaired by defendant’s employees, and which, to facilitate their repair, were moved along railroad tracks by the tractor operated by plaintiff, were cars used in interstate" }, { "docid": "13087631", "title": "", "text": "for such\" injury * * * resulting in whole '■ or in part from the negligence of any ' of the officers, agents, or employees of such carrier * * *. 'i “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of in- .. terstate or foreign commerce; or , shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the > purposes of this chapter, be considered as being employed by such carrier in such commerce and shall.be.; considered as entitled to the benefits of this chapter.” . The evidence as to the duties imposed on plaintiff and the circumstances of the accident were proved by plaintiff’s witnesses. Defendant called no witnesses on these subjects. The facts established by this evidence and the admissions of defendant’s answer show that the cars being repaired by defendant’s employees, and which, to facilitate their repair, were moved along railroad tracks by the tractor operated by plaintiff, were cars used in interstate transportation and that, therefore, plaintiff was then performing duties in the furtherance of interstate commerce or duties directly or closely and substantially affecting such commerce. Shelton v. Thomson, 7 Cir., 148 F.2d 1, at page 3. There is no evidence to the contrary. Accordingly, as a matter of law the District Court was correct in its instruction to the jury and its denial of the motions of the defendant insofar as they involved the question which we are now discussing. There was no issue of fact on this subject which could have been properly submitted to the jury. 2. Defendant admits that, because it offered no evidence to rebut plaintiff’s version of the accident, for all practical purposes any controversy on the issues of negligence and contributory negligence was eliminated from the case and that there was left to the jury only one question: whether plaintiff’s physical condition at the time of trial was caused by the accident. It contends that on this issue it was denied a fair presentation of its contentions, for two" }, { "docid": "2910714", "title": "", "text": "to broaden and make it clear that if an employee is engaged in services (although by themselves intrastate in character), which in any way “further or affect” interstate commerce, he comes within the scope of the Act. The Federal Employers’ Liability Act, 45 U.S.C.A. § 51, was amended in part by Act of August 11, 1939, c. 685, § 1, 53 Stat. 1404, to read as follows: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” The court in Ermin v. Pennsylvania R. Co., D.C., 36 F.Supp. 936, 940, said: “There are multitudinous decisions raising hairsplitting interpretations as to whether or not the employees at the time of accident were actually engaged in interstate commerce. It was to avoid this difficulty that Congress enacted the Amendment. It was, undoubtedly, the intent of Congress to include within the scope of the Federal Employers’ Liability Act all employees, even those performing intrastate services whose employment meets the requirements of the Act. It is no longer subject to doubt that Congress had power to include intrastate employment, which affects interstate commerce, within the scope of the Federal Employers’ Liability Act.” “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.” National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893, 911, 108 A.L.R. 1352. “Congress’ intent to include any employee who performs services which in any way further or affect interstate commerce is clear.” Edwards v. Baltimore & O. R. Co., 7 Cir., 131 F.2d" }, { "docid": "6090474", "title": "", "text": "Commission operated as an estoppel precluding the plaintiff from maintaining this action, for there is then no right of recovery here. But if he were engaged in interstate commerce, the question remains whether the matter is res judicata owing to the proceedings before the Wisconsin Industrial Commission. On the basis of the factual showing made on the motion, was the deceased engaged in interstate commerce within the meaning of the Federal Employers’ Liability Act, as amended by the act of Congress approved August 11, 1939? The applicable provisions of the act are contained in the August 11, 1939 amendment, 53 Stat. 1404, 45 U.S.C.A. § 51, and declare: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely amd substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Act and of an Act entitled ‘An Act relating to the liability of common car riers by railroad to their employees in certain cases’ (approved April 22, 1908), as the same has been or may hereafter be amended.” The amendment should be liberally construed so as to extend the protection of the act to all employees, any part of whose duties furthers or affects interstate commerce in any way. Edwards v. Baltimore & O. R. Co., 7 Cir., 1942, 131 F.2d 266, 369; Ermin v. Pennsylvania R. Co., D.C.N.Y.1941, 36 F.Supp. 936, 940; Agostino v. Pennsylvania R. Co., D.C.N.Y.1943, 50 F.Supp. 726, 729; Great Northern Ry. Co. v. Industrial Commission of Wisconsin, 1944, 245 Wis. 375, 380, 14 N.W.2d 152, 155. In Ermin v. Pennsylvania R. Co., supra, the court said (page 940 of 36 F.Supp.) : “There are multitudinous decisions raising hair-splitting interpretations as to whether or not the employee at the time of his accident was actually engaged in interstate commerce. It was to avoid this difficulty that Congress enacted the amendment." }, { "docid": "22970802", "title": "", "text": "he is employed by such carrier in such commerce.” 45 U.S.C.A. § 51. The first question is whether Mostyn was so employed while asleep on railroad property during the night preceding a Saturday when he may have intended to go to work. Before the amendment of 1939, the authorities clearly indicate to my mind a negative answer. The amendment was intended to do away with the “moment of injury” rule so that an employee whose work has to do with both interstate and intrastate commerce shall not be deprived of the benefits of the Act because his Work at the moment of injury was intrastate. It provides that an employee “any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce * * * shall * * * be considered as entitled to the benefits of this chapter.” During the night hours normally devoted to sleep the employee owes no duties to his employer; nor do the hours spent in sleep “directly or- closely and substantially, affect such commerce,” even though he may work better after a night’s rest. Hence I do not think the 1939 amendment should affect our decision. Mostyn was privileged to sleep in the hunk car (and a certain sum was deducted from his wages if he did so) but he was not required to sleep there; he could, if he wished, have rented a room in the nearby village as one of the track crew did. Therefore the question whether he was employed in interstate commerce during the night is no different than it would be had he been sleeping at a hoarding house in the village or at his own home and suffered injury through the negligence of the railroad* as, for example, by reason of the destruction of the house by fire caused by a defective spark arrester in a railroad engine. In my opinion he was not injured while he was employed in interstate commerce. He was, however, an invitee on the railroad" }, { "docid": "1131025", "title": "", "text": "moved. The Wyoming Avenue bridge spanned defendant’s single track, which carried interstate rail movements, but there is no evidence, nor can we judicially notice, that the vehicular traffic on the bridge was anything but intrastate. Plaintiff began working on this bridge on October 17, 1949, and remained on this job until his injury on December 5, 1949. On defendant’s post-trial motion to set aside the judgment and enter judgment in its favor, the district court held that, in view of the widened scope of the Act since the 1939 amendment, plaintiff was covered because his regular work involved duties of both an interstate and intrastate nature and that seven weeks of work on an intrastate job was not so long a period of time as to make him exclusively an intrastate worker. D.C.E.D.Pa. 1953, 113 F.Supp. 863. The district court assumed without deciding that repairing an intrastate highway bridge over an interstate railroad track was not work of an interstate nature within the wording of the amended Act. The Federal Employers’ Liability Act provides that every interstate rail carrier “ * * * ghaii he Hable in damages to any person suffering injury while he is employed by such carrier in such commerce * * That language was productive of no little confusion among railroaders as to whether they were engaged in interstate or intrastate commerce at the precise moment of injury. Consequently, the 1939 amendment added the following paragraph: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” There is no doubt that the amendatory language broadened the coverage of the Act. It seems to have done so in two different ways. First, the phrase “any part of whose duties” clear ly eliminated the “moment of injury” test. The" }, { "docid": "563465", "title": "", "text": "as to avoid confusing the jurors. If the facts had not been stipulated the trial of the'action would have-been unduly prolonged as most of the testimony in the case would relate to the question of interstate commerce. The question to be answered is whether or not the plaintiff at the time of his accident was employed in interstate commerce within the purview of the Federal Employers’ Liability Act as amended by the Act of Congress, approved August 11, 1939, Public — No. 382 — 76th Congress, Chapter 685, 1st Session, S. 1708, 45 U.S. C.A. § 51 et seq. Chapter 685 amends Sections 1, 4 and 6 of the Federal Employers’ Liability Act (45 U.S.C.A. §§ 51-59) and adds a new Section 10, 45 U.S.C.A. § 60. It extends the scope of employment embraced in the Federal Employers’ Liability Act (Section Í), it abolishes the defense of assumption of risk (Section 4), it extends the period within which an action may be brought from two to three years (Section 6), and prohibits any interference with the voluntary furnishing of information to a person in interest as to the facts concerning the injury or the death of any railroad employee (new Section 10). The pertinent portion of Chapter 685 with which we are now concerned is with the amendment to the first section. This new Act defines what is meant by employment in interstate commerce, as follows: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Act and of an Act entitled ‘An Act relating to the liability of common carriers by railroad to their employees in certain cases’ (approved April 22, 1908), as the same has been or may hereafter be amended.” The facts are sufficiently set forth in the stipulation," }, { "docid": "12750109", "title": "", "text": "as the stoker was repaired. The fire was still burning and the steam pressure was being maintained. The statute, broadened by the 1939' amendment, now reads : “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” Despite any question as to whether plaintiff might have recovered under the original act (see New York Central Ry. v. Marcone, 281 U.S. 345, 50 S.Ct. 294, 74 L.Ed. 892), it is clear that he is within the scope of the amendment. Under the original statute experience demonstrated continued difficulty in ascertaining when the work of an employee was part of interstate commerce. The amendment, much wider in scope, was inspired by a desire to avoid such confusion. Congress’ intent to include any employee who performs services which in any way further or affect interstate commerce is clear. Ermin v. Pennsylvania Ry., D.C.N.Y., 36 F.Supp. 936; Southern Pac. Co. v. Ind. Acc. Comm., Cal.App. 113 P.2d 768, 770, affirmed by California Supreme Court in 19 Cal.2d 883, 120 P.2d 888; Piggue v. Baldwin, 154 Kan. 708, 121 P.2d 183; Louisville & N. Co. v. Potts, Tenn.Sup., 158 S.W.2d 729. Inasmuch as this locomotive was used in interstate commerce and was destined to resume such service as soon as repaired, plaintiff, engaged in repairing it and fitting it for further commerce, thereby furthered and substantially affected interstate commerce within the meaning of the law. The judgment is affirmed." }, { "docid": "22421429", "title": "", "text": "of that season, he' was employed as a boat operator. When the season, closed, he helped take the boats out of the water and block them up for the winter. His employment terminated December 19, 1947. Desper was re-employed March 15, 1948. There was testimony that he was then engaged for the season and was .to resume his operator’s duties when the boats were back in the water. For the time being, however, he was put to cleaning, painting, and waterproofing the-boats, preparing them for navigation. On the date of the acci dent, April 26th, the boats were still blocked up on land. Several men, Desper among them, were on board a moored barge, maintained by respondent as a machine shop, warehouse, waiting room and ticket office, engaged in painting life preservers for use on the boats. One man was working on a fire extinguisher. It exploded, killing him and Desper. The Jones Act confers a cause of action on “any seaman.” In opposition to petitioner’s suit under the Act, respondent contended that Desper, at the time of his death, was not a “seaman” within the meaning of the Act. Whether he was such a “seaman” is the critical issue in the case which reached this Court. Petitioner contends that the 1939 Amendment to the Federal Employers’ Liability Act extended the scope of the word “seaman,” as used in the Jones Act, to include those whose work “substantially affects” navigation. The Amendment provides that: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall ... be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” Petitioner reads with that Amendment the provision of the Jones Act that statutes “modifying or extending the common-law right or remedy in cases of personal injury to railway employees” shall apply in a seaman’s action. We agree with the court below that" }, { "docid": "8107057", "title": "", "text": "resulting wholly or partly from the negligence of the carrier. This Court early construed the statute to require that the employee be “at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it” in order to qualify for coverage under the Act. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558. Later, in Raymond v. Chicago, M. & St. P. R. Co., 243 U. S. 43, 45, and New York Central R. Co. v. White, 243 U. S. 188, 192, this Court held that employees engaged in or connected with new construction for their railroad employers were not engaged in interstate commerce within the meaning of the Act and were therefore not entitled to its benefits. See also Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 152. The “moment of injury” and “new construction” doctrines were the source of much confusion to the railroads, their employees and the courts, with the result that the reports were replete with decisions drawing very fine distinctions in determining whether an employee was engaged in interstate commerce within the contemplation of the Act so as to entitle him to bring suit for damages thereunder for injuries incurred while in the carrier’s employ. The uncertainty had grown to such proportions that Congress, in 1939, added the following paragraph to § 1 of the Act: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Act and of an Act entitled ‘An Act relating to the liability of common carriers by railroad to their employees in certain cases’ (approved April 22, 1908), as the same has been or may hereafter be amended.” The Senate, in" }, { "docid": "22421430", "title": "", "text": "the time of his death, was not a “seaman” within the meaning of the Act. Whether he was such a “seaman” is the critical issue in the case which reached this Court. Petitioner contends that the 1939 Amendment to the Federal Employers’ Liability Act extended the scope of the word “seaman,” as used in the Jones Act, to include those whose work “substantially affects” navigation. The Amendment provides that: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall ... be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” Petitioner reads with that Amendment the provision of the Jones Act that statutes “modifying or extending the common-law right or remedy in cases of personal injury to railway employees” shall apply in a seaman’s action. We agree with the court below that the Amendment has no effect on the “right or remedy” of railway employees but merely redefines for the purposes of the Federal Employers’ Liability Act the scope of the word “employee” to include certain persons not theretofore covered, because they were not directly engaged in. interstate or foreign commerce. It does not extend the meaning of “seaman” in the Jones Act to. include one who was not a “seaman” before. Seamen were given the rights of railway employees by the Jones Act, but the-definition of “seaman” was never made dependent on the meaning of “employee” as used in legislation applicable to railroads. The next question is whether, without reference to this 1939 Amendment, decedent was a “seaman” at the time of his death. The many cases turning upon the question whether an individual was a “seaman” demonstrate that the matter depends largely on the facts of the particular case and the activity in which he was engaged at the time of injury. The facts in this case are unique. The work in which the decedent" } ]

[ { "docid": "14372840", "title": "", "text": "to dismiss and for summary judgment then under consideration, and sought further argument on those motions and their request for sanctions against plaintiffs. Following extensions sought by the parties to brief and argue the renewed motions, the matter was again taken under submission as of June 29, 1990. The Parties The Morins, and the plaintiffs in the Blaikie, Seals and Petersen actions (collectively, the “plaintiffs”), are investors in various tax-advantaged limited partnerships, principally in the real estate area (the “Investor Partnerships”), who claim to have been defrauded by the defendants. According to the Complaint, each of the Investor Partnerships had as their general partner of a company named Tru Management Corp. (“TMC”), a defendant to this action. The Investor Partnerships owned limited partnership interests in four entities holding real estate assets (themselves organized as limited partnerships and referred to as the Owning Partnerships): Dallas Realty Associates, which owned commercial real estate in Dallas, Texas (the “Dallas Property”), Lincoln Center Associates, which owned commercial real estate in Indianapolis, Indiana (the “Indianapolis Property”), the Mutual Home Bank Building Partnership, which owned commercial real estate in Grand Rapids, Michigan (the “Grand Rapids Property”), and Sarasota Plaza Associates, which owned commercial real estate in Sarasota, Florida (the “Sarasota Property”) (collectively, the “Properties”). Each of these Owning Partnerships had as its general partner a corporation, MHT Properties Corp., also a defendant to this action. MHT Properties and TMC were each subsidiaries of defendant MHT Corp. The Owning Partnerships purchased the Properties from other Trupin-affiliated entities, the general partner of each of which was Tru Properties Corp. (“TPC”). Defendants to the consolidated complaint number over fifty. For ease, they may be classified as follows: (a) The Trupin Defendants: —Barry Trupin (“Trupin”) is alleged to have founded and controlled a network of companies referred to by plaintiffs as the “Rothschild Group,” consisting of, inter alia, TPC, TMC, Rothschild Registry International, Inc. (“Registry”), Rothschild Reserve International, Inc. (“Reserve”), RRI Realty Corp. (“Realty”), MHT Properties, MHT Corp., BWT Corp., several other corporations and a series of trusts (the “Trusts”). —Bennett Trupin, Trupin’s father (“Bennett”), is identified as the Chairman" } ]

[ { "docid": "12550728", "title": "", "text": "action was filed in Blaikie v. Trupin, 88 Civ. 8464. On May 23,1989, a third group of plaintiffs filed the action of Petersen v. Trupin, 89 Civ. 3102, and on October 18,1989, a fourth group filed the action of Seal v. Trupin, 89 Civ. 5746. In April of 1988, the Morin and Blaikie actions were consolidated, following which the plaintiffs filed a consolidated and amended complaint in February of 1989. All four of the actions were consolidated under index number 88 Civ. 5743 in December of 1989. Following this court’s dismissal of the consolidated amended complaint in Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990), the Morin plaintiffs filed the second amended complaint (the “Morin complaint”), which is the subject of the present motions, on December 22, 1990. On April 4, 1991, a motion to amend to add additional investors (the “Additional Investors”) as plaintiffs was granted. C. Discussion 1. Lampf Bars Only Some of the 10(b) Claims The Morin complaint specifies that each of the Morin plaintiffs purchased their interests in the Investor Partnerships and Airjet Trusts in either October 1985, December 1985, February 1986, September 1986 or November 1988. Thus, unlike the Alberti plaintiffs, some plaintiffs in the Morin action undeniably commenced their actions within the three year statute of limitations established in Lampf. Nevertheless, two problems remain in disposing of the Lampf question. First, the Morin complaint does not specify when each of the Morin plaintiffs discovered the alleged fraud, making it impossible to determine whether Lampf bars any claims for failure to commence the action within one year of discovery. See Morin Comp. 119 (“Plaintiffs have recently ascertained that these Offering Materials contained numerous material misrepresentations____”); Lampf, 111 S.Ct. at 2782 (“Litigation instituted pursuant to § 10(b) and Rule 10b-5 ... must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation.” (emphasis added)). The Morin plaintiffs are thus instructed to make further submissions addressing this question. The second remaining problem arises from the consolidation of four actions, some of which were commenced within the absolute" }, { "docid": "5765678", "title": "", "text": "of these companies, Rothschild Reserve International, Inc. (“Rothschild Reserve”) and Prudential American Realty Corp. The Plaintiffs allege that the Sacramento PPM revealed neither that Trupin was behind these limited partnership offerings nor that other Trupin tax shelters had been routinely disallowed by the I.R.S. Mintz, Fraade & Zeigler, P.C. (the “Mintz Fraade Defendants” or “Mintz, Fraade”) is a New York law firm which is alleged to have acted as counsel to both entities in the Rothschild Group and North American, to have, provided tax opinions and tax information in private placement memoranda prepared for these offerings, and to have represented Trupin in partnership audit proceedings before the I.R.S.' Organek is the principal and sole owner of Continental Realty Corp., a New York corporation which “packages” real estate purchases for other interests. Stuart Becker & Co. is a New York accounting firm which prepared financial information and rosy financial projections about the Butano Property for inclusion in the Sacramento PPM. It also prepared the audited financial statements of the Sacramento Associates for the year ending December 31, 1984. Prior Proceedings The underlying disputes and principal parties which are the subject of these actions are recounted in prior opinions of the court, familiarity with which is assumed. See, e.g., Morin v. Trupin, 711 F.Supp. 97 (S.D.N.Y.1989); Morin v. Trupin, 738 F.Supp. 98 (S.D.N.Y.1990); Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990); Morin v. Trupin, 778 F.Supp. 711 (S.D.N.Y.1991); and Morin v. Trupin, 799 F.Supp. 342 (S.D.N.Y.1992). The most recent opinion of this Court in the Morin/Alberti actions was the opinion dated January 6, 1993, which reinstated the Plaintiffs claims against the Becker Defendants, the Mintz, Fraade Defendants, and Organek and Continental Realty by permitting the Plaintiffs to plead a third amended complaint in the Alberti and in the Morin actions (the “Complaints”). 809 F.Supp. 1081 (1993). The Plaintiffs’ original pleadings against Organek and Continental had been dismissed for insufficient particularity in this Court’s opinion dated September 29, 1990 (Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990)), and claims against these defendants were not repleaded until the Plaintiffs filed the new Complaints. The third amended" }, { "docid": "12550675", "title": "", "text": "the Rothschild Group entities involved in the Sacramento Associates Offering. Abrams supervised the Mintz Fraade defendants’ services in connection with the Sacramento Associates Private Placement Memorandum and participated in the drafting of the Terms of the Offering, the Summary of the Offering and the Business of the Partnership sections. 246. Barry and Bennet Trupin agreed with Rogers in approximately November 1986 that Rogers would assume responsibility for Sacramento Associates and the Butano Property. Trupin, with the assistance of Abrams, personally negotiated and implemented the transfer of control to Rogers. 278. ... Abrams is liable for establishing the Sacramento Enterprise because he was a controlling person of Rothschild Reserve and gave legal advice regarding the structure of the Sacramento Associates syndication. 10(b) Claim To state a cause of action under § 10(b) and Rule 10b-5, the complaint must allege with particularity (1) a misstatement or omission by the defendant; (2) as to a material fact; (3) upon which plaintiff relied; (4) and which caused plaintiff to suffer damages. In addition, the plaintiff must show that (5) defendant acted with scienter; and that (6) the misstatement or omission was made in connection with the purchase or sale of securities. See In re Columbia Secs. Litig., 747 F.Supp. 237, 240-41 (S.D.N.Y.1990). Because the Alberti complaint fails to do so, the alleged 10(b) violation cannot be asserted as a predicate act. Although the identification of alleged misrepresentations in offering materials, such as the Sacramento PPM in which Abrams allegedly participated in preparing, has been held to satisfy the “when, where, and what” prongs of that rule, see Luce, 802 F.2d at 55; see also Morin, 747 F.Supp. at 1061 (second amended complaint must meet this requirement), Rule 9(b) requires that all defendants be apprised of the nature of their alleged participation in the fraud individually, except those defendants who are “controlling persons” or “insiders,” as to whom the Rule’s stringency is relaxed. Di Vittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir.1987); Quintel, 589 F.Supp. at 1243. Indeed, in dismissing the complaint in Morin, this court required that, in repleading the" }, { "docid": "12550664", "title": "", "text": "OPINION SWEET, District Judge. Defendants Robert Abrams (“Abrams”); Mintz, Fraade & Zeiger, P.C., Frederick M. Mintz and Alan Fraade (the “Mintz Fraade Defendants”); and Stuart Becker and Stuart Becker & Co., P.C. (the “Becker Defendants”) (collectively the “Moving Defendants”), have moved to dismiss the second amended consolidated complaint of the plaintiffs in Morin v. Trupin, 88 Civ. 5743 (the “Morin action” and the “Morin plaintiffs”), and the second amended complaint in the related action of Alberti v. Trupin, 90 Civ. 3475 (the “Alberti action” and the “Alberti plaintiffs”), pursuant to Rules 12(b)(1), 12(b)(6) and 9(b), Fed.R.Civ.P. The underlying disputes and principal parties which are the subject of these actions are recounted in prior opinions of the court, familiarity with which is assumed. See, e.g., Morin v. Trupin, 711 F.Supp. 97 (S.D.N.Y.1989); Morin v. Trupin, 728 F.Supp. 952 (S.D.N.Y.1989); Morin v. Trupin, 738 F.Supp. 98 (S.D.N.Y.1990); Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990). I. THE ALBERTI ACTION A. Facts The Alberti action involves an allegedly unlawful securities offering by defendants Barry Trupin (“Trupin”), Rothschild Reserve International, Inc. (“Rothschild Reserve”) and others, including the Moving Defendants. The plaintiffs are fifty three investors in a New York limited partnership known as Sacramento Office Park Associates (“Sacramento Associates”). Sacramento Associates was organized for the stated purpose of acquiring, owning, operating and leasing commercial real property consisting of a two-building office park complex known as the Butano Buildings in Sacramento, California (the “Butano Property”). Plaintiffs allege that in making their investments in Sacramento Associates, they relied upon false and misleading representations contained in the Sacramento Office Park Associates Series Private Placement Memorandum (the “Sacramento PPM”), solicitation letters, and sales and promotional literature (collectively the “Sacramento Offering Materials”) and on oral representations by various defendants. The Sacramento Offering Materials allegedly contained misrepresentations regarding the manner in which the Butano Property was acquired for syndication, the value and commercial viability of the Butano Property, the application of the proceeds of the offering of limited partnership interests in Sacramento Associates, and the basis for and availability of the tax benefits described in the Sacramento PPM. All of the" }, { "docid": "5765677", "title": "", "text": "memoranda (the “Sacramento PPM”). 'The Morin plaintiffs are investors in other real estate limited partnerships, referred to as the 118,119, 119M, 130 and 218 syndications, formed to divide up and offer to the public interests in three office buildings located in Sarasota, Florida, Grand Rapids, Michigan, Dallas, Texas, and in warehouses in Indianapolis, Indiana. Apart, from the manner in which interlocking'interests in the four properties were distributed among the different limited partnerships, the Morin plaintiffs alleged that the syndications were structured in precisely the same way as the'Sacramento offering in Alberti. Certain of the Morin plaintiffs also invested in tax shelters which leased helicopters, the Airjet Trusts. Barry H. Trupin (“Trupin”) is alleged to be the founder and controlling person of several interconnected companies and partnerships (the “Rothschild Group”) which offered all of these interests to accredited investors. ;Tru-pin is also alleged to have controlled North American Associates (“North American”), a New York limited partnership which was represented by Trupin to be unaffiliated with the Rothschild Group. Defendant Gerald Schaeffer (“Schaeffer”) was President of two of these companies, Rothschild Reserve International, Inc. (“Rothschild Reserve”) and Prudential American Realty Corp. The Plaintiffs allege that the Sacramento PPM revealed neither that Trupin was behind these limited partnership offerings nor that other Trupin tax shelters had been routinely disallowed by the I.R.S. Mintz, Fraade & Zeigler, P.C. (the “Mintz Fraade Defendants” or “Mintz, Fraade”) is a New York law firm which is alleged to have acted as counsel to both entities in the Rothschild Group and North American, to have, provided tax opinions and tax information in private placement memoranda prepared for these offerings, and to have represented Trupin in partnership audit proceedings before the I.R.S.' Organek is the principal and sole owner of Continental Realty Corp., a New York corporation which “packages” real estate purchases for other interests. Stuart Becker & Co. is a New York accounting firm which prepared financial information and rosy financial projections about the Butano Property for inclusion in the Sacramento PPM. It also prepared the audited financial statements of the Sacramento Associates for the year ending December" }, { "docid": "12550725", "title": "", "text": "Fraade Defendants, the court finds that the charges of mail fraud and fraudulent concealment by the Becker Defendants has not been adequately pleaded. Because the Alberti complaint thus fails to plead at least two predicate acts with the requisite particularity, the RICO claims against the Becker Defendants are dismissed. State Law Claims The reasons supporting dismissal of the state law claims against Abrams and the Mintz Fraade Defendants apply equally to those against the Becker Defendants. II. THE MORIN ACTIONS A. Facts The plaintiffs'in the Morin actions (the “Morin plaintiffs”) are sixty three individual investors in nine unsuccessful Florida limited partnerships formed to own and operate commercial real estate (the “118-119, 130 Series, and 218 Limited Partnerships” or the “Investor Partnerships”) and in four trusts formed to purchase and own helicopters (the “Airjet Trusts”). The Investor Partnerships were organized to acquire interests in four other limited partnerships (the “Owning Partnerships”) which had been organized to own and operate commercial real estate located in Sarasota Florida; Grand Rapids, Michigan; Dallas, Texas; and Indianapolis, Indiana. The second amended consolidated complaint (the “Morin complaint”) alleges that Trupin, Rothschild Reserve and numerous other defendants, including the Moving Defendants, fraudulently induced the Morin plaintiffs to invest in the Investor partnerships and the Airjet Trusts through allegedly unlawful securities offerings promoted by allegedly fraudulent private placement memoranda (the “118-119, 130 Series and 218 PPM’s”) and other offering materials (collectively, the “Morin Offering Materials”). The Morin action is a consolidation of various related litigations involving the Investor Partnerships and Airjet Trusts. Despite differences in the subject matter of the limited partnerships and trusts involved in the Morin action, the schemes, various misdeeds, acts allegedly attributable to each of the Moving Defendants and the substance of the 118-119, 130 Series and 218 PPM’s are substantially similar to those involved in the Alberti action. Any differences that do exist are immaterial to the Rule 9(b) inquiry, and the Morin complaint suffers from the same infirmities as the Alberti complaint. Therefore, the 10(b) and RICO claims against Abrams and Becker in the Morin action are dismissed for failure to plead" }, { "docid": "12550727", "title": "", "text": "fraud with particularity and to plead at least two predicate acts. The pendent claims are dismissed for lack of pendent jurisdiction. Because of the defects in the pleading of the mail fraud and fraudulent concealment claims, the RICO claims against the Mintz Fraade Defendants are dismissed for failure to plead two predicate acts forming a pattern of racketeering activity. Nevertheless, because Lampfmay not bar the 10(b) claims of certain Morin plaintiffs against the Mintz Fraade Defendants, which, as concluded above are pleaded with sufficient particularity to satisfy Rule 9(b), the 10(b) claims against the Mintz Fraade Defendants held by those plaintiffs falling outside of Lampf’s scope survive the motion to dismiss. B. Procedural History The procedural history of the Morin action prior to the filing of the second amended consolidated complaint is summarized in a prior opinion of the court, familiarity with which is assumed. See Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990). Briefly, the complaint in Morin v. Trupin, 88 Civ. 5743, was filed on August 17, 1988. On November 29, 1988, a separate action was filed in Blaikie v. Trupin, 88 Civ. 8464. On May 23,1989, a third group of plaintiffs filed the action of Petersen v. Trupin, 89 Civ. 3102, and on October 18,1989, a fourth group filed the action of Seal v. Trupin, 89 Civ. 5746. In April of 1988, the Morin and Blaikie actions were consolidated, following which the plaintiffs filed a consolidated and amended complaint in February of 1989. All four of the actions were consolidated under index number 88 Civ. 5743 in December of 1989. Following this court’s dismissal of the consolidated amended complaint in Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990), the Morin plaintiffs filed the second amended complaint (the “Morin complaint”), which is the subject of the present motions, on December 22, 1990. On April 4, 1991, a motion to amend to add additional investors (the “Additional Investors”) as plaintiffs was granted. C. Discussion 1. Lampf Bars Only Some of the 10(b) Claims The Morin complaint specifies that each of the Morin plaintiffs purchased their interests in the Investor Partnerships and" }, { "docid": "5765676", "title": "", "text": "OPINION SWEET, District Judge. Defendants Emmanuel Organek (“Orga-nek”), President of Continental Realty (“Continental”), and Stuart Becker and Stuart Becker, P.C., (collectively “the Becker Defendants” or “Becker”), have moved to reargue this Court’s determination that the Plaintiffs in the Morin and in the Alberti actions had adequately pled securities and common law fraud against them. For the reasons given below, Organek’s motion to reargue is granted and Becker’s motion .to reargue is denied. Upon reconsideration, - Organek’s motion to dismiss the securities fraud claims against him is granted, and for lack of pendent jurisdiction, the state law' claims are dismissed as well. The Parties The Alberti Plaintiffs are investors in a New York limited partnership known as the Sacramento Office Park Associates (“Sacrar mentó Associates”), organized to own, operate and lease a two-building office park complex in Sacramento, California referred to as the Butano Buildings (the “Butano. Property”). The Plaintiffs allege they purchased their limited partnership interests from November 1984 through the spring of 1985 in reliance upon allegedly misleading offering materials, especially a private' placement memoranda (the “Sacramento PPM”). 'The Morin plaintiffs are investors in other real estate limited partnerships, referred to as the 118,119, 119M, 130 and 218 syndications, formed to divide up and offer to the public interests in three office buildings located in Sarasota, Florida, Grand Rapids, Michigan, Dallas, Texas, and in warehouses in Indianapolis, Indiana. Apart, from the manner in which interlocking'interests in the four properties were distributed among the different limited partnerships, the Morin plaintiffs alleged that the syndications were structured in precisely the same way as the'Sacramento offering in Alberti. Certain of the Morin plaintiffs also invested in tax shelters which leased helicopters, the Airjet Trusts. Barry H. Trupin (“Trupin”) is alleged to be the founder and controlling person of several interconnected companies and partnerships (the “Rothschild Group”) which offered all of these interests to accredited investors. ;Tru-pin is also alleged to have controlled North American Associates (“North American”), a New York limited partnership which was represented by Trupin to be unaffiliated with the Rothschild Group. Defendant Gerald Schaeffer (“Schaeffer”) was President of two" }, { "docid": "20135368", "title": "", "text": "them on June 3rd, 1992. BACKGROUND The Ahmed plaintiffs, like the plaintiffs in the related actions of Morin v. Trupin and Alberti v. Trupin, are investors in limited partnership interests in the Sarasota properties, commercial real estate run by one of the companies in Trupin’s Rothschild Group. The Second Amended Complaint, like its predecessors, alleges that Trupin falsely inflated the values of the Sarasota Properties by selling them between companies controlled by him but ostensibly independent, with a mark-up in price with each sale. It also alleges that Trupin and his companies had a history of offering tax shelters whose tax deductions were disallowed by the I.R.S., that the tax benefits being offered to sweeten the Sarasota deal were equally likely to be disallowed by the I.R.S., and that the accountants, the Becker defendants, and the law firm Eisenberg Honig knew or recklessly refused to learn that this material information was being omitted from the documents offering the limited partnerships. The Second Amended Complaint (hereinafter “Complaint”) makes the same allegations as the first two complaints filed by Plaintiffs against the professionals: that both the Becker defendants and Eisenberg Honig knowingly helped to prepare misleading partnership offering materials in connection with the limited partnerships. Plaintiffs have alleged securities fraud violations under Section 10(b) of the 1934 Securities and Exchange Act (15 U.S.C. § 78j) on the part of all defendants, aiding and abetting the securities law violations and professional negligence on the part of the Becker defendants and Eisenberg Honig, a pattern of racketeering activity under RICO with the securities violations as the predicate acts, and a variety of state law claims, including civil theft and breach of fiduciary duty, on the part of the Rothschild Group. DISCUSSION The Applicable Limitations Periods Defendants maintain that the securities claims of the plaintiffs who reside and who purchased their interests in the Third, Seventh, and Second Circuits are time-barred. Plaintiffs maintain that the claims of none of the plaintiffs are barred, based on allegations that all plaintiffs have standing to allege the state-law claims and that defendants’ behavior has tolled the statute of" }, { "docid": "5765679", "title": "", "text": "31, 1984. Prior Proceedings The underlying disputes and principal parties which are the subject of these actions are recounted in prior opinions of the court, familiarity with which is assumed. See, e.g., Morin v. Trupin, 711 F.Supp. 97 (S.D.N.Y.1989); Morin v. Trupin, 738 F.Supp. 98 (S.D.N.Y.1990); Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990); Morin v. Trupin, 778 F.Supp. 711 (S.D.N.Y.1991); and Morin v. Trupin, 799 F.Supp. 342 (S.D.N.Y.1992). The most recent opinion of this Court in the Morin/Alberti actions was the opinion dated January 6, 1993, which reinstated the Plaintiffs claims against the Becker Defendants, the Mintz, Fraade Defendants, and Organek and Continental Realty by permitting the Plaintiffs to plead a third amended complaint in the Alberti and in the Morin actions (the “Complaints”). 809 F.Supp. 1081 (1993). The Plaintiffs’ original pleadings against Organek and Continental had been dismissed for insufficient particularity in this Court’s opinion dated September 29, 1990 (Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990)), and claims against these defendants were not repleaded until the Plaintiffs filed the new Complaints. The third amended Complaint in Alberti, apart from.certain generalized allegations of fraud which were not pled with sufficient particularity under Rule 9(b), alleges that Organek, who was not licensed as a real estate broker in California, had been paid a $750,000 brokerage fee out of the proceeds of the offering of limited partnership interests in the Butano Property in Sacramento Associates syndicated by Trupin. The Plaintiffs allege that this “brokerage fee,” listed as such in the Sacramento PPM, was-fraudulent because the underlying transaction never happened, and that all brokerage services contributing to Sacramento Associates’ purchase of the Butano Property were performed by the Sacramento office of Caldwell Banker, which was paid a true brokerage fee of four percent of the $10,500,000.00 gross sale price or $420,000.00. According to the Sacramento PPM, a Tru-pin-controlled entity, Sacramento Realty Corporation (SCR), purchased the property by paying cash, assuming the first mortgage, and taking out a second mortgage owed to the seller and that SCR paid Continental a brokerage fee of $750,000 for its services. SCR then sold the Butano property to" }, { "docid": "11466828", "title": "", "text": "7), the tort count (denominated Count 8) and the breach of fiduciary duty count (denominated Count 20). They have also moved pursuant to Rule 56(b) for summary judgment, pursuant to 9(b) to dismiss plaintiffs’ Third, Sixth, Seventh and Eighth counts, and pursuant to Rule 11 for sanctions. Plaintiffs in both actions have moved to consolidate the actions, and defendants Continental Realty Corporation (“Continental”) and Emanuel Organek (“Organek”) have moved by letter motion to conduct discovery as to the identification of wit nesses and production of documents relied upon by plaintiffs in making allegations in the Consolidated Complaint. For the reasons set forth below, the motions to dismiss the claims against the Ferber defendants are granted, as are the motions to amend the complaint, to consolidate the actions and to conduct discovery. The motion for sanctions is denied. The Morin Action The Parties and The Complaint Ferber Greilsheimer is a New York City law firm. Chan is a member of Ferber Greilsheimer. The Morins are investors in Rothschild Realty Partners 130 Series (“Rothschild Realty” or the “Investor Partnerships”). The Complaint alleges that in November, 1985, Simeon purchased 5.75 units in Rothschild Realty in the face amount of $1,006,250. That same month, Delano purchased 2.75 units in the face amount of $467,500. In connection with these investments, the Morins executed promissory notes (the “Notes”). Between July 1986 and December 31, 1986, the Morins made payments of $345,000 on the Notes to Rothschild Realty. According to the Complaint, the Investor Partnerships owned limited partnership interests in three organizations: Dallas Realty Associates, which owned commercial real estate in Dallas, Texas (the “Dallas Property”), Lincoln Center Associates, which owned commercial real estate in Indianapolis, Indiana (the “Indianapolis Property”), and the Mutual Home Bank Building Partnership which owned commercial real estate in Grand Rapids, Michigan (the “Grand Rapids Property”) (collectively, the “Properties”). The Complaint alleges that the Morins have been defrauded in connection with their investment in the Partnerships. Principally, it alleges that the Properties were sold and resold among entities controlled by Barry Trupin at inflated prices; that the private placement memoranda for the Partnerships" }, { "docid": "20135366", "title": "", "text": "(decided July 28, 1992); Ahmed v. Trupin, 781 F.Supp. 1017 (S.D.N.Y.1992) (decided January 9, 1992); Morin v. Trupin, 778 F.Supp. 711 (S.D.N.Y.1991) (decided November 18, 1991); Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990) (decided September 29, 1990); Morin v. Trupin, 738 F.Supp. 98 (S.D.N.Y.1990) (decided May 3, 1990). In this particular case, there are 123 plaintiffs. One, the Sarasota Plaza Defense Fund, Inc., is a not-for-profit corporation organized under the laws of Florida; the rest are individual investors in the limited partnerships (which offered assorted interests in commercial real estate, the “Sarasota Property,” located in Sarasota, Florida) that are the subject of these actions. Barry Trupin (“Trupin”), together with other corporations (the “Rothschild Group”) and individuals associated with him, is alleged to have induced the plaintiffs into investing in these partnerships by misrepresenting the soundness of the investment properties and to have syndicated the interests as part of a fraudulent conspiracy designed to obtain funds from the investing public. Stuart Becker & Co. (the “Becker Defendants” or “Becker”) is an accounting firm and New York professional corporation retained to provide financial forecasts for and to conduct audits of the Sarasota Plaza Associates. Eisenberg Honig is a law firm and New York professional corporation retained to prepare the Sarasota Plaza Associated private placement memorandum, a tax opinion, and an opinion on the legality of the limited partnership units. PRIOR PROCEEDINGS The Ahmed complaint was filed on November 16, 1989. The plaintiffs voluntarily withdrew with leave to replead their complaint after the court dismissed the complaint in the related underlying action of Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990) on September 29, 1990. The Amended Complaint was filed on April 4, 1991. Defendants Becker’s and Eisenberg Honig’s motion to dismiss the Ahmed plaintiffs’ Amended Complaint was granted by this Court on January 9, 1992 (Ahmed v. Trupin, 781 F.Supp. 1017 (S.D.N.Y.1992), with leave to replead. The Ahmed plaintiffs then served their Second Amended Complaint on March 10, 1992. The Becker Defendants moved to dismiss the plaintiffs’ claims against them on May 29th, 1992 and Eisenberg Honig moved to dismiss the claims against" }, { "docid": "20135365", "title": "", "text": "OPINION SWEET, District Judge. Defendant Stuart Becker & Co., P.C. (the “Becker Defendants”) has moved to dismiss the plaintiffs’ Second Amended Complaint for failure to plead fraud with particularity pursuant to Federal Rules of Civil Procedure, Rule 9(b) and for failure to state a claim upon which relief may be granted pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6). Defendant Eisenberg, Honig & Fogler (“Eisenberg Honig”) has also moved to dismiss on the same grounds and adds claims for dismissal under Federal Rules of Civil Procedure, Rules 56 and 12(b)(1), and a claim for sanctions under Federal Rules of Civil Procedure, Rule 11. For the following reasons, the motions to dismiss are granted. Eisenberg Honig’s motion for summary judgment and sanctions pursuant to Federal Rules of Civil Procedure, Rules 56 and 11, are denied. THE PARTIES The underlying disputes and principal parties that are the subject of this and related actions are recounted in the prior opinions of this Court, familiarity with which is presumed. See, e.g., Morin v. Trupin, 799 F.Supp. 342 (S.D.N.Y.1992) (decided July 28, 1992); Ahmed v. Trupin, 781 F.Supp. 1017 (S.D.N.Y.1992) (decided January 9, 1992); Morin v. Trupin, 778 F.Supp. 711 (S.D.N.Y.1991) (decided November 18, 1991); Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990) (decided September 29, 1990); Morin v. Trupin, 738 F.Supp. 98 (S.D.N.Y.1990) (decided May 3, 1990). In this particular case, there are 123 plaintiffs. One, the Sarasota Plaza Defense Fund, Inc., is a not-for-profit corporation organized under the laws of Florida; the rest are individual investors in the limited partnerships (which offered assorted interests in commercial real estate, the “Sarasota Property,” located in Sarasota, Florida) that are the subject of these actions. Barry Trupin (“Trupin”), together with other corporations (the “Rothschild Group”) and individuals associated with him, is alleged to have induced the plaintiffs into investing in these partnerships by misrepresenting the soundness of the investment properties and to have syndicated the interests as part of a fraudulent conspiracy designed to obtain funds from the investing public. Stuart Becker & Co. (the “Becker Defendants” or “Becker”) is an accounting firm and New York" }, { "docid": "1668759", "title": "", "text": "21, 25 (2d Cir.1990). The Plaintiffs must show that the Mintz Fraade Defendants “understood the scope of the enterprise and knowingly agreed to further its affairs through the commission of various offenses.” Morin v. Trupin, 747 F.Supp. 1051, 1067 (S.D.N.Y.1990); see also United States v. Rastelli, 870 F.2d 822, 832 (2d Cir.), cert. denied, 493 U.S. 982, 110 S.Ct. 515, 107 L.Ed.2d 516 (1989); United States v. Ruggiero, 726 F.2d 913, 921 (2d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984); Zaro Licensing, Inc. v. Cinmar, Inc., 779 F.Supp. 276, 283-84 (S.D.N.Y.1991); Browning Ave. Realty Corp. v. Rosenshein, 774 F.Supp. 129, 141 (S.D.N.Y.1991). The Plaintiffs claim that they recently obtained through discovery information regarding certain meetings among the Mintz Fraade Defendants, Barry Trupin, and other Rothschild executives. Based on this information, the fifth claim of the Fourth Amended Complaint has added allegations that, at these meetings, the Mintz Fraade Defendants knowingly conspired and agreed with each other, Barry Trupin, and the other individual defendants to violate RICO. Further, they allege that the Mintz Fraade Defendants personally committed and agreed to commit a variety of fraudulent and illegal racketeering acts described in the Complaint. These allegations rectify the earlier problems with the 1962(d) conspiracy allegations in the previous Alberti complaints. In Aquino v. Trupin, 833 F.Supp. 336 (S.D.N.Y.1993), this Court held that a Trupin-sired limited partnership which did not anticipate a net profit until the year 2000 was obviously a tax shelter. The plaintiff-investors in that tax shelter, therefore, could not plead loss causation without alleging that they had not received the anticipated tax benefits. See Aquino v. Trupin, 833 F.Supp. at 343. The Private Placement Memorandum for the limited partnership involved in the present ease indicates that investors could only expect tax losses until 1992. See Sacramento PPM at 22. Aquino does not, therefore, require dismissal of the present claim. Conclusion For the reasons given above, the Court grants the Alberti Plaintiffs leave to file a Fourth Amended Complaint and the Morin Plaintiffs leave to amend their complaint to the extent that such amendments are" }, { "docid": "5765686", "title": "", "text": "contractors, such as lawyers and accountants, are generally not considered insiders absent specific allegations of insider status. Stevens, 694 F.Supp. at 1061; DiVittorio, 822 F.2d at 1249. Organek was an independent contractor, not an employee of the Trupin organization; he was president of his own company and maintained his own real estate business. However, taking the Plaintiffs’ allegations as true, Organek was employed by the Trupin organization. The Plaintiffs allege that Organek and Continental acquired properties in eighteen of the partnerships syndicated by Trupin, arranged financing for and managed the properties, and supplied the information about the properties themselves which was included in the private placement memoran-da. Organek and Continental are alleged to have served as general partners of a number of prior Rothschild Group real estate syndi-cations structured in precisely the same way as the partnerships at issue in Alberti and in Morin, and to have conferred with Schaeffer, President of Rothschild Realty, on the disclosures contained in the Private Placement Memoranda. The Plaintiffs have not alleged that Continental was a shell corporation or alter ego of one of the Rothschild .Group entities, and under these circumstances the corporate form must be respected. “Basic principles of corporate law presume that absent a rather egregious disregard of corporate formalities, one corporate entity or individual without substantial interests in the corporation is not automatically or readily responsible for the acts of another entity,” The Limited, Inc. v. McCrory Corp., 645 F.Supp. 1038, 1044 (S.D.N.Y.1986). The Plaintiffs have presented no evidence that Organek actually knew, or culpably refused to see, how the fees were being characterized in the Sacramento PPM. Without providing more to demonstrate Organek’s “insider” status, his inaction will not make him liable. Organek is therefore even less likely to be an insider by virtue of his position than a former defendant dismissed earlier in this action, Robert Abrams, who served as in-house counsel to entities in the Rothschild Group. See Morin v. Trupin, 778 F.Supp. 711, 717 (S.D.N.Y.1991). In the Alberti Third Amended Complaint, unlike the complaint which was dismissed against Abrams, the Plaintiffs do allege that Organek participated" }, { "docid": "12550726", "title": "", "text": "amended consolidated complaint (the “Morin complaint”) alleges that Trupin, Rothschild Reserve and numerous other defendants, including the Moving Defendants, fraudulently induced the Morin plaintiffs to invest in the Investor partnerships and the Airjet Trusts through allegedly unlawful securities offerings promoted by allegedly fraudulent private placement memoranda (the “118-119, 130 Series and 218 PPM’s”) and other offering materials (collectively, the “Morin Offering Materials”). The Morin action is a consolidation of various related litigations involving the Investor Partnerships and Airjet Trusts. Despite differences in the subject matter of the limited partnerships and trusts involved in the Morin action, the schemes, various misdeeds, acts allegedly attributable to each of the Moving Defendants and the substance of the 118-119, 130 Series and 218 PPM’s are substantially similar to those involved in the Alberti action. Any differences that do exist are immaterial to the Rule 9(b) inquiry, and the Morin complaint suffers from the same infirmities as the Alberti complaint. Therefore, the 10(b) and RICO claims against Abrams and Becker in the Morin action are dismissed for failure to plead fraud with particularity and to plead at least two predicate acts. The pendent claims are dismissed for lack of pendent jurisdiction. Because of the defects in the pleading of the mail fraud and fraudulent concealment claims, the RICO claims against the Mintz Fraade Defendants are dismissed for failure to plead two predicate acts forming a pattern of racketeering activity. Nevertheless, because Lampfmay not bar the 10(b) claims of certain Morin plaintiffs against the Mintz Fraade Defendants, which, as concluded above are pleaded with sufficient particularity to satisfy Rule 9(b), the 10(b) claims against the Mintz Fraade Defendants held by those plaintiffs falling outside of Lampf’s scope survive the motion to dismiss. B. Procedural History The procedural history of the Morin action prior to the filing of the second amended consolidated complaint is summarized in a prior opinion of the court, familiarity with which is assumed. See Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990). Briefly, the complaint in Morin v. Trupin, 88 Civ. 5743, was filed on August 17, 1988. On November 29, 1988, a separate" }, { "docid": "20135367", "title": "", "text": "professional corporation retained to provide financial forecasts for and to conduct audits of the Sarasota Plaza Associates. Eisenberg Honig is a law firm and New York professional corporation retained to prepare the Sarasota Plaza Associated private placement memorandum, a tax opinion, and an opinion on the legality of the limited partnership units. PRIOR PROCEEDINGS The Ahmed complaint was filed on November 16, 1989. The plaintiffs voluntarily withdrew with leave to replead their complaint after the court dismissed the complaint in the related underlying action of Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990) on September 29, 1990. The Amended Complaint was filed on April 4, 1991. Defendants Becker’s and Eisenberg Honig’s motion to dismiss the Ahmed plaintiffs’ Amended Complaint was granted by this Court on January 9, 1992 (Ahmed v. Trupin, 781 F.Supp. 1017 (S.D.N.Y.1992), with leave to replead. The Ahmed plaintiffs then served their Second Amended Complaint on March 10, 1992. The Becker Defendants moved to dismiss the plaintiffs’ claims against them on May 29th, 1992 and Eisenberg Honig moved to dismiss the claims against them on June 3rd, 1992. BACKGROUND The Ahmed plaintiffs, like the plaintiffs in the related actions of Morin v. Trupin and Alberti v. Trupin, are investors in limited partnership interests in the Sarasota properties, commercial real estate run by one of the companies in Trupin’s Rothschild Group. The Second Amended Complaint, like its predecessors, alleges that Trupin falsely inflated the values of the Sarasota Properties by selling them between companies controlled by him but ostensibly independent, with a mark-up in price with each sale. It also alleges that Trupin and his companies had a history of offering tax shelters whose tax deductions were disallowed by the I.R.S., that the tax benefits being offered to sweeten the Sarasota deal were equally likely to be disallowed by the I.R.S., and that the accountants, the Becker defendants, and the law firm Eisenberg Honig knew or recklessly refused to learn that this material information was being omitted from the documents offering the limited partnerships. The Second Amended Complaint (hereinafter “Complaint”) makes the same allegations as the first two complaints" }, { "docid": "11037444", "title": "", "text": "OPINION SWEET, District Judge. Plaintiffs in the related actions of Morin v. Trupin, No. 88 Civ. 5743, and Alberti v. Trupin, No. 90 Civ. 3475, have moved pursuant to § 476 of the FDIC Improvement Act of 1991, 15 U.S.C. § 78aa, to reinstate their claims under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 which were previously dismissed as time-barred by opinion and order of this court dated November 18, 1991 (the “Opinion”). See Morin v. Trupin, 778 F.Supp. 711 (S.D.N.Y.1991). For the following reasons, the motion is granted in part and denied in part. Background The complaint in the Alberti action was filed on May 22,1990. The plaintiffs in the Morin action, which is actually a consolidation of four separate actions, filed their complaints on August 17, 1988 (the Morin complaint), November 29, 1988 (the Blaikie complaint), May 23, 1989 (the Petersen complaint) and October 18, 1989 (the Seal complaint). These four complaints were consolidated under index number 88 Civ. 5743 in December of 1989. The Morin complaint was amended on April 4, 1991 to add additional plaintiffs. Additional plaintiffs were named in the Alberti action by Amended Complaint on June 28, 1990 and by the Second Amended Complaint on February 22,1991. On November 19,1991, the § 10(b) claims of all of the Alberti plaintiffs and of those Morin plaintiffs listed in the Opinion were dismissed as time-barred under the one-year/three-year statute of limitations established in the Supreme Court’s June 20, 1991 opinion in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. —, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991) and made retroactive by James B. Beam Distilling Co. v. Georgia, — U.S. —, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), an opinion handed down the same day. On December 19, 1991, President Bush signed into law § 476 of the Federal Deposit Insurance Corporation Improvement Act of 1991, Pub.L. No. 102-242, 105 Stat. 2236 (codified at § 27A of the Securities Exchange Act of 1934, 15 U.S.C. § 78aa-l), which proscribed pro forma retroactive application of the" }, { "docid": "1668729", "title": "", "text": "Plaintiffs leave to file their Fourth Amended Complaint. Stuart Becker & Co., P.C., also defendants in this matter, have submitted an affidavit in opposition to the Alberti and Morin Plaintiffs’ motions, but did not join in the Mintz Fraade Defendants’ motion to dismiss. For the reasons set forth below, the Court grants the Alberti Plaintiffs leave to file a Fourth Amended Complaint and the Morin Plaintiffs leave to amend their complaint. Defendants’ motion to dismiss is granted in part and denied in part. The Parties The Alberti Plaintiffs are investors in a New York limited partnership known as the Sacramento Office Park Associates, organized to own, operate and lease a two-building office park complex in Sacramento, California referred to as the Butano Buildings (the “Butano Property”). The Morin plaintiffs are investors in other real estate limited partnerships, referred to as the 118, 119, 119M, 130 and 218 syndications, formed to divide up and offer to the public interests in office buildings and warehouses in a variety of locations. Mintz, Fraade & Zeiger, P.C. is a New York law firm which is alleged to have acted as counsel to partnerships and corporations controlled by Barry H. Trupin (“Trupin”), who is the founder and promoter of all the tax shelters involved in these actions. Mintz, Fraade & Zeiger has been named as a defendant in both the Morin and Alberti actions. Background The Alberti and Morin actions have been the subject numerous opinions issued by this Court, familiarity with which is assumed. See, e.g., Morin v. Trupin, 711 F.Supp. 97 (S.D.N.Y.1989); Morin v. Trupin, 728 F.Supp. 952 (S.D.N.Y.1989); Morin v. Trupin, 738 F.Supp. 98 (S.D.N.Y.1990); Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990); Morin v. Trupin, 778 F.Supp. 711 (S.D.N.Y. 1991); Morin v. Trupin, 799 F.Supp. 342 (S.D.N.Y.1992); Morin v. Trupin, 832 F.Supp. 93 (S.D.N.Y.1993); see also Ahmed v. Trupin, 781 F.Supp. 1017 (S.D.N.Y.1992); Ahmed v. Trupin, 809 F.Supp. 1100 (S.D.N.Y.1993); Aquino v. Trupin, 833 F.Supp. 336 (S.D.N.Y.1993). Argument on the present motions was heard on September 29, 1993, and the motions were considered fully submitted as of that date. Briefly, in both" }, { "docid": "1668730", "title": "", "text": "New York law firm which is alleged to have acted as counsel to partnerships and corporations controlled by Barry H. Trupin (“Trupin”), who is the founder and promoter of all the tax shelters involved in these actions. Mintz, Fraade & Zeiger has been named as a defendant in both the Morin and Alberti actions. Background The Alberti and Morin actions have been the subject numerous opinions issued by this Court, familiarity with which is assumed. See, e.g., Morin v. Trupin, 711 F.Supp. 97 (S.D.N.Y.1989); Morin v. Trupin, 728 F.Supp. 952 (S.D.N.Y.1989); Morin v. Trupin, 738 F.Supp. 98 (S.D.N.Y.1990); Morin v. Trupin, 747 F.Supp. 1051 (S.D.N.Y.1990); Morin v. Trupin, 778 F.Supp. 711 (S.D.N.Y. 1991); Morin v. Trupin, 799 F.Supp. 342 (S.D.N.Y.1992); Morin v. Trupin, 832 F.Supp. 93 (S.D.N.Y.1993); see also Ahmed v. Trupin, 781 F.Supp. 1017 (S.D.N.Y.1992); Ahmed v. Trupin, 809 F.Supp. 1100 (S.D.N.Y.1993); Aquino v. Trupin, 833 F.Supp. 336 (S.D.N.Y.1993). Argument on the present motions was heard on September 29, 1993, and the motions were considered fully submitted as of that date. Briefly, in both actions the Plaintiffs have alleged that Trupin organized, ran, and syndicated limited partnerships in the businesses of real estate and equipment leasing in order to generate profits and tax losses for limited partners. Certain of the tax benefits allegedly promised to investors in the equipment leasing trusts have apparently been disallowed by the I.R.S. All of the commercial properties have been foreclosed upon. The plaintiffs in both actions have filed suit alleging violations of Section 10(b) of the 1934 Securities Exchange Act, 15 U.S.C. § 78j(b) and Rule 10(b)-5, violations of RICO, 18 U.S.C. § 1962(a) — (d), and various common law claims. On September 15, 1993, (the “September 15th Opinion”) this Court granted the Mintz Fraade Defendants’ motion to dismiss the Plaintiffs’ claims under Section 1962(c) as alleged against them in light of the recent decision of the United States Supreme Court in Reves v. Ernst & Young, — U.S. —, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993). In addition, the Plaintiffs’ other claims under the RICO statute were dismissed pursuant to Fed.R.Civ.P. 12(b)(6)." } ]

[ { "docid": "3180861", "title": "", "text": "the sentence in the written judgment to be the “final pronouncement of sentence,” and that it conformed to the one which he had intended to impose orally in defendant’s presence. The minutes of the hearing recite that the Rule 35 motion was denied. But the transcript does not bear this out. What the transcript does show is that the district judge, without granting the motion or vacating the prior sentence, thereupon “repronounce(d) the sentence”— three years’ imprisonment and a two-year special parole term. In limine we are confronted with the government’s objection that the motion was untimely. Rule 35 provides: “The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce sentence within 120 days after the sentence is imposed, or within 120 days after receipt [of a] dismissal of appeal it In the government’s view, based upon its interpretation of Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), the formalized judgment and sentence are not illegal but simply are imposed in an illegal manner because the portion of its specifying the mandatory parole term was imposed in defendant’s absence, contrary to the provision of Rule 43. Pointing out that timely filing of a Rule 35 motion to correct sentence “illegally imposed” is jurisdictional (United States v. Robinson, 457 F.2d 1319 (3d Cir. 1972), United States v. Marchese, 341 F.2d 782, 788 (9th Cir. 1965), cert, denied, 382 U. S. 817, 86 S.Ct. 41, 15 L.Ed.2d 64). the government argues that the dismissal must be sustained. The defendant, on the other hand, argues that the three-year sentence imposed in his presence on June 21, 1972, was itself an “illegal” sentence and that the subsequent addition of the parole term in his absence cannot serve to remove the illegality. Thus defendant contends that the maximum to which he could have been resentenced was one year imprisonment and two years special parole, and that therefore the sentence “re-pronounced” on April 23, 1973," } ]

[ { "docid": "11573823", "title": "", "text": "a ‘fundamental defect’ that would result in a ‘complete miscarriage of justice’ nor presented ‘exceptional circumstances’ that justify extraordinary relief.” United States v. Harris, 592 F.2d 1058, 1060 (9th Cir.1979) (affirming sentencing under section 2255, but reversing under Fed.R.Crim.P. 35; quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). We need not address whether Fowler’s claims are cognizable under section 2255, because we may treat his petition as a motion to correct an “illegal” sentence under Fed.R.Crim.P. 35. Brooks v. United States, 457 F.2d 970, 971 n. 1 (9th Cir.1972). See also Hill, 368 U.S. at 430, 82 S.Ct. at 472; Heflin v. United States, 358 U.S. 415, 418-19, 79 S.Ct. 451, 453-54, 3 L.Ed.2d 407 (1959), overruled on other grounds, Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); United States v. Cevallos, 538 F.2d 1122, 1127 (5th Cir.1976); United States v. Phillips, 403 F.2d 963, 964 (6th Cir.1968); Scarponi v. United States, 313 F.2d 950, 952-53 (10th Cir.1963). Rule 35 provides: (a) Correction of Sentence. The court may correct an illegal sentence at any time and it may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. (b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. Rule 35 distinguishes among motions to reduce or correct an “illegal” sentence, a lawful sentence, and a “sentence imposed" }, { "docid": "5825657", "title": "", "text": "rent Rule 35 that went into effect on November 1, 1987, but under the previous version of the rule. The superseded version, which governs Jones’ motion and our review of it, reads: Rule 35. Correction or Reduction of Sentence (a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. (b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is'revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The’ court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit Court of Appeals decided prior to October 1, 1981. . We note that, because of the recent amendment of Rule 35, eliminating the provision allowing a defendant to move for correction or reduction of sentence, our decision today will be of limited effect. . Jones does not contend that the PSI inaccurately reports the contents of the Department of Corrections report. . As support for the idea that culpability level is a factual matter subject to Rule 32 procedures, appellant cites United States v. Garcia, 821 F.2d 1051 (5th Cir.1987). We distinguish that case, however, from appellant Jones’ own situation and, to any degree that the cases are indistinguishable, disagree with Garcia. In Garcia, defendant’s PSI stated that “according to investigators,” defendant was as culpable as the original drug supplier. Defendant" }, { "docid": "22984613", "title": "", "text": "A fortiori, the claim of inherent authority to impose conditions of confinement as a part of the sentencing process must fail. This does not mean that the Attorney General has unfettered discretion with respect to conditions of confinement. However, except where specific statutory authority exists, the place and conditions of confinement are in the first instance, matters of executive rather than judicial branch authority. (B) Rule 35, Fed.R.Crim.P. The district court under Rule 35, Fed.R.Crim.P., has the power to correct an illegal sentence at any time, and to reduce a sentence within 120 days of the issuance of a mandate on affirmance. Simultaneously with the filing of the instant motion, defendants did present a Rule 35 motion for reduction of sentence. The court denied such relief and that action is not before us on this appeal. An illegal sentence for purposes of Rule 35 is one in excess of a statutory provision or otherwise contrary to the applicable statute. See 2 C. Wright & A. Miller, Federal Practice and Procedure § 581, at 552-53 (1969). The Rule does not even afford a means for correcting the failure of the district court to comply with Rule 32, Fed.R.Crim.P. in imposing sentence. “[A]s the Rule’s language and history make clear, the narrow function of Rule 35 is to permit correction at anytime of an illegal sentence, not to reexamine errors occurring at the trial or other proceedings prior to the impo sition of sentence.” Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962) (emphasis in original) (footnote omitted). It does not afford a jurisdictional predicate for the control of the manner of execution of sentence, such as credit for time served. See Lee v. United States, 400 F.2d 185, 188 (9th Cir. 1968). The judgment of sentence in this case was not illegal. It remanded the defendants to the custody of the Attorney General for a period within the statutory maximum, and it imposed no conditions. The illegality which the defendants allege is not in the sentence, but in the manner in which the Attorney" }, { "docid": "23409743", "title": "", "text": "(1981 & Supp.1983) (“Law of the case terminology is often employed to express the principle that inferior tribunals are bound to honor the mandate of superior courts within a single judicial system.... This principle is so straight-forward as to present few interesting problems.”) (footnote omitted). . Rule 35 now provides: (a) CORRECTION OF SENTENCE. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. (b) REDUCTION OF SENTENCE. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. Fed.R.Crim.P. 35. . The government cites twelve cases that purportedly provide support by analogy for the opposite conclusion. We disagree. Seven of the government’s cases are direct appeal cases, which present none of the jurisdictional and finality problems present in this case. See United States v. Hodges, 628 F.2d 350, 353 (5th Cir. 1980); United States v. McDaniel, 550 F.2d 214, 219 (5th Cir.1977); see also United States v. Marino, 682 F.2d 449, 455 n. 9 (3d Cir. 1982); United States v. Pinto, 646 F.2d 833, 838 (3d Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 94, 70 L.Ed.2d 85 (1981); United States v. Davis, 573 F.2d 1177, 1180-82 (10th Cir.), cert. denied, 436 U.S. 930, 98 S.Ct. 2829, 56 L.Ed.2d 775 (1978); United States v. Moore, 540 F.2d 1088, 1091 (D.C.Cir.1976); United States v. Calhoun, 510 F.2d 861, 870 (7th Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1683, 44 L.Ed.2d 104 (1975). These cases, furthermore, also all" }, { "docid": "21564706", "title": "", "text": "States v. Gonzalez-Sandoval, 894 F.2d 1043 (9th Cir.1990); United States v. Kane, 876 F.2d 734, 735-36 (9th Cir.), cert. denied, — U.S. -, 110 S.Ct. 173, 107 L.Ed.2d 130 (1989). Although the court did not have the power to grant Eatinger’s Rule 35 motion, Eatinger could have petitioned the court to correct the sentence under 28 U.S.C. § 2255. Pro se petitioners’ arguments must be liberally construed. See Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985) (en banc). While Eatinger requested relief which was not available to him under Fed. R.Crim.P. 35(b), the court could have granted the same relief had Eatinger filed a petition pursuant to 28 U.S.C. § 2255. In short, Eatinger cited the wrong authority for his request. The district court erred in failing to interpret this pro se petitioner’s motion as a valid § 2255 petition. Although we affirm the district court’s denial of Eatinger’s Rule 35 motion, we reverse on the basis of the court’s failure to liberally construe Eatinger’s motion. We therefore remand so that the court may evaluate the motion as a petition filed under 28 U.S.C. § 2255. AFFIRMED in part, REVERSED in part, and REMANDED. . The previous version of the Rule provides: (a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. (b) Reduction of Sentence. A motion to reduce sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Fed.R.Crim.P. 35 (1986). . This version of the Rule provides: (a) Correction of a" }, { "docid": "21907316", "title": "", "text": "any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. “(b) Reduction of sentence. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.” Appellants contend that the sentence on Count II was not illegal since it was within the statutory limits. Furthermore, appellants contend that (1) the Count II sentence was not imposed in an illegal manner, (2) changing it from concurrent to consecutive constituted an increase, not a reduction, in the sentence, and (3) even if it were considered a reduction in sentence, because the term of years was changed from seven to five, the reduction occurred well outside the 120 day time limitation. In sum, they contend that the court had no jurisdiction to alter its sentence on Count II. The government contends that the word “sentence” is commonly understood to mean both the penalties imposed on each separate count, and also the total punishment imposed by the court for all related counts of an indictment. The government contends that if a part of the court’s total sentence is vacated, “the court’s entire sentencing plan is affected” and therefore “Rule 35 should permit the district court to correct that illegal sentencing scheme by adjusting the various penalties in a way that renders the sentence lawful and at the same time preserves the district court’s sentencing intent.” United States supplemental brief at 6. There is little precedent or authority on this issue. Appellants in their supplemental brief admit that virtually all cases which" }, { "docid": "6195778", "title": "", "text": "had the district judge been properly informed, he would have imposed a lighter sentence. A. Rule 35 of the Federal Rules of Criminal Procedure states, in relevant part: (a) Correction of Sentence The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. (b) Reduction of Sentence A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of - conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. Fed.R.CrimP. 35. This court’s review of the denial of a Rule 35 motion is limited to a determination of whether the sentence is within the requisite legislative limits and whether the imposition of the sentence rose to the level of an abuse of discretion by the trial court. United States v. Davies, 683 F.2d 1052, 1054 (7th Cir.1982). “A sentence which is within the limits established by statute under which it is imposed will not be vacated upon review unless the sentencing judge relied upon improper considerations or unreliable information in exercising his dis cretion or failed to exercise any discretion at all in imposing the sentence.” United States v. Harris, 761 F.2d 394, 402-03 (7th Cir.1985). Therefore, our review is limited to whether the trial judge based his sentences on improper information contained in the presentence report, or failed to exercise any discretion in imposing the sentences. Harris, 761 F.2d at 403. District courts have limited power under Rule 35(b) of the Federal Rules of" }, { "docid": "6711470", "title": "", "text": "strictly speaking, a Rule 35 motion pertains only to the correction or reduction of a sentence; neither the suspension of sentence nor the granting of probation constitutes the correction or reduction of a sentence. See Phillips v. United States, 8 Cir., 212 F.2d 327. In 1979, however, Rule 35(b) was again amended changing the law as held in Af-fronti that there could be no probation after the prisoner had commenced service of his sentence because (1) it would blur the distinction between probation, parole, and pardon, and (2) would open the way to increasing applications for probation throughout the prison term. The Rule now reads: (a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. (b) Reduction of Sentence. The court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentences under this subdivision. The Advisory Committee Notes explain that In construing the statute in Murray and Affronti, the Court concluded Congress could not have intended to make the probation provisions applicable during the entire period of incarceration (the only other conceivable interpretation of the statute) for [the reasoning set forth herein at page 2] * * *. Those concerns do not apply to the instant provisions, for the reduction may occur only within the time specified in subdivision (b). This change gives “meaningful effect” to the motion to reduce remedy by allowing the court “to consider all alternatives that were available at the time of imposition of the original sentence.” United States v. Golphin, 362" }, { "docid": "4296601", "title": "", "text": "procedural rules in imposing sentences. See United States v. Sparrow, 673 F.2d 862, 864-65 (5th Cir.1982). Velasquez objected to the description of notorious alien smuggler and the court failed to respond. Therefore, the district court violated Fed.R.Crim.P. 32(c)(3)(D). Accordingly, the denial of Velasquez’s Rule 35 motion must be reversed and the case remanded for resentencing. Sparrow, 673 F.2d at 868. Because Velasquez must be resentenced regardless of his ineffective assistance of counsel claims and false statements in the presentencing report claims, and because he is represented by new counsel who will undoubtedly object to any such false statements, we need not address Velasquez’s other claims. The judgment is REVERSED, the sentence is VACATED, and the case is REMANDED for resentencing. . (a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal'manner within the time provided herein for the reduction of sentence. (b) Reduction of Sentence. The court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. . In so holding, we reject the Ninth Circuit decision that in order to make out a violation of Fed.R.Crim.P. 32(c)(3)(D), the defendant must prove that the sentencing “court 'demonstrably' relied on the challenged information when it imposed sentence.\" United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984). Such a requirement clearly contradicts the plain meaning of the rule." }, { "docid": "6215128", "title": "", "text": "promptness in ruling on the issues presented to it in the various motion papers and responses. We cannot fault the district court for delaying its ruling on the Rule 35 motion pending final action by the Parole Commission where the Government resisted the granting of the Rule 35 motion on grounds that the Parole Commission could consider the DeMiers’ parole request independently of the new guidelines. Under the circumstances, the district court acted on the Rule 35 motion within a reasonable period of time. Accordingly, we affirm the district court’s order reducing the sentences. Having decided the merits of the appeal, we dismiss the Government’s petition for a writ of mandamus. . Fed.R.Crim.P. Rule 35 provides: (a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. (b) Reduction of Sentence. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. . The Honorable John W. Oliver, United States Senior District Judge for the Western District of Missouri. The district court’s opinion, United States v. DeMier, appears at 520 F.Supp. 1160 (W.D.Mo.1981). . This comment complies with procedures recommended by the Division of Probation of the Administrative Office of the United States Courts contained in Pub. 105 entitled The Presentence Investigation Report (Jan. 5, 1978), which states: Sentencing Data. — Include the range of sentences imposed nationally for the offense for which the defendant is being sentenced. Include also the probation officer’s estimate of" }, { "docid": "7775877", "title": "", "text": "a different type of defect. See generally 3 C. Wright, Federal Practice and Procedure: Criminal 2d §§ 582-86 (1982). First, a convicted defendant may move the court to correct an “illegal sentence” at any time following the conviction. Second, the court “may correct a sentence imposed in an illegal manner,” but only upon motion made within 120 days of the occurrence of a listed triggering event; here the relevant event is the “receipt by the court of a mandate issued upon affirmance of the judgment [of conviction].” Third, the court may entertain a motion for reduction of sentence, which motion also is available only within the 120 day period. The time limits obtaining to the latter two motions have been held to be jurisdictional. United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979). The district court received this court’s mandate affirming Pavlico’s conviction on August 14, 1989. Pavlico, 741 F.Supp. at 583. Pavlico filed the instant pro se motion on June 26, 1990, greatly in excess of the 120-day limit. Thus, Pavlico’s motion was proper under Rule 35 only if his challenges are to an “illegal sentence” under Rule 35(a) so that the time limit does not apply at all. We find that Pavlico’s is not an “illegal sentence” and thus that this case may not be maintained under Rule 35(a). The Supreme Court has limited,the types of defects that will render a sentence “illegal” for purposes of attack without regard to time under Rule 35(a). “Sentences subject to correction under [Rule 35(a) ] are those that the judgment of conviction did not authorize.” United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 250, 98 L.Ed. 248 (1954); see also Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962) (rejecting Rule 35(a) challenge where “[t]he punishment meted out was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or constitutionally invalid in any other respect.”)." }, { "docid": "16620369", "title": "", "text": "1988), in which we addressed the retroactivity issue first. But see United States v. Bennett, 943 F.2d 738, 741 (7th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 2970, 119 L.Ed.2d 590 (1992) (analyzing Hughey's retroactivity after addressing the substance of the defendant's argument). . Offenses committed prior to November 1, 1987 are governed by the former version of Rule 35, which provided that: (a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. (b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under the subdivision. Rule 35, Fed.R.Crim.P. (1982). This provision was changed by amendment in 1986. Pub.L. 98-473, Title II, § 215(b), 98 Stat. 2015. . In our analysis of the retroactivity of Hughey to Woods' motion, we assume without deciding that, should Hughey be retroactively applied here, it would apply to Woods' restitution order even though it was imposed pursuant to the FPA rather than the VWPA, the statute at issue in Hughey. Cf. Davis v. United States, 417 U.S. 333, 342 & n. 12, 94 S.Ct. 2298, 2303 & n. 12, 41 L.Ed.2d 109 (1974) (accepting, for retroactivity analysis, defendant's assertion that new criminal decision was correctly decided and relevant to his conviction). . We note that the approach espoused in Linkletter v. Walker was discredited by a plurality of the Court in Teague" }, { "docid": "2039482", "title": "", "text": "motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. Nothing in the language of the rule suggests that its drafters intended to alter this longstanding jurisdictional principle. Indeed, the circuit courts have uniformly acknowledged that the sentencing court is without jurisdiction to rule on a motion for reduction of sentence once a notice of appeal has been docketed. See, e.g., United States v. Russell, 776 F.2d 955, 956 (11th Cir.1985); United States v. Johns, 638 F.2d 222, 224 (10th Cir.1981); United States v. Hayes, 589 F.2d 811, 827 n. 8 (5th Cir.), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); United States v. Mack, 466 F.2d 333, 340 (D.C.Cir.), cert. denied, 409 U.S. 952, 93 S.Ct. 297, 34 L.Ed.2d 223 (1972); United States v. Burns, 446 F.2d 896, 897 (9th Cir.1971). Accordingly, we are compelled to vacate the district court’s reduction of the appellants’ sentences and to remand the cases for reconsideration of the appellants’ Rule 35(b) motions. III. Although we are constrained to remand this matter for reconsideration and reinstatement of the appellants’ sentence reductions, we do not believe that our holding precludes consideration, albeit in dictum, of the appealability question presented here. The government concedes that a defendant may freely appeal the denial of a motion to reduce a lawful sentence, see 3 C. Wright, Federal Practice and Procedure, § 586 at 415-16, but it contends that this right does not extend to motions for reduction of" }, { "docid": "18212867", "title": "", "text": "or having the effect of upholding, a judgment of conviction or probation revocation. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. Although Dean did not specify the subdivision of Rule 35 under which his September 15, 1982 motion was made, it is apparent from the content of the motion that Dean was requesting reduction of his sentence under Rule 35(b), and not correction of an illegal sentence under Rule 35(a). . Rule 35(a) provides: (a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. . The Parole Commission’s decision apparently was based on the Commission’s view of the seriousness of Dean’s crimes. Dean does not challenge the validity of the Parole Commission’s determination of his parole eligibility. . The district court entered the following order: ORDER Roscoe Emory Dean, Jr. was convicted, after a jury trial in this court, on May 14, 1980. His conviction was substantially affirmed by the Fifth Circuit Court of Appeals Unit B on January 22, 1982. The defendant has filed a motion to reconsider the denial of his motion pursuant to Rule 35 of the Federal Rules of Criminal Procedure. After due consideration thereof, the sentence of confinement heretofore entered is modified to be limited to time already served by the defendant, and he is ordered released instanter. All other provisions of said sentence heretofore rendered are to remain in full force and effect. SO ORDERED, this 5th day of April, 1984. Dean has chosen on appeal to treat the district court's order as one granting relief under Rule 35(a). In any event, we note that the court could not properly have granted relief to Dean under Rule 35(b). The Supreme Court has held that the 120-day time limit contained in Rule 35(b) is jurisdictional. United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242-43, 60 L.Ed.2d 805 (1979); accord, United States v. Rice," }, { "docid": "10568880", "title": "", "text": "Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. Fed.R.Crim.P. 35(a) (1986). “Rule 35 distinguishes among motions to reduce or correct an ‘illegal’ sentence, a lawful sentence, and a ‘sentence imposed in an illegal manner.’ ” United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.1986), cert. denied, 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 153 (1987). “An illegal sentence may be corrected at any time, but a motion to reduce a lawful sentence or to correct a sentence imposed in an illegal manner must be made within the 120-day period prescribed by Rule 35.” United States v. Stump, 914 F.2d 170, 172 (9th Cir.1990). We have defined an illegal sentence as one which is not authorized by the judgment of conviction, or is in excess of the permissible statutory penalty for the crime, or is in violation of the Constitution. Fowler, 794 F.2d at 1449. Johnson argues the sentence imposed for his conviction on Count Three is “illegal.” His pleadings, however, do not contend his sentence is unauthorized by the judgment of conviction, exceeds the permissible statutory penalty for his crime, or violates his constitutional rights. Instead, Johnson argues he should not have been convicted on Count Three because, among other reasons, he was not a “felon in possession” as proscribed by 18 U.S.C.App. § 1202(a), repealed by Pub.L. 99-308, § 104(b), 100 Stat. 459 (May 19, 1986). The motion based upon Rule 35(a), therefore, is improper and the appeal normally would be dismissed. However, the “unfortunate misla-belling of his motion is not necessarily fatal to maintaining [Johnson’s] claims [because] [t]he pleadings of a pro se inmate are to be liberally construed.” United States v. Young, 936 F.2d 1050, 1052 (9th Cir.1991). We may treat a Rule 35 motion as one brought under 28 U.S.C. § 2255. Id.; see also United States v. Kohl, 972 F.2d 294, 296-97 (9th Cir.1992). We may do this even though Johnson failed to invoke § 2255 in the" }, { "docid": "11573824", "title": "", "text": "(a) Correction of Sentence. The court may correct an illegal sentence at any time and it may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. (b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. Rule 35 distinguishes among motions to reduce or correct an “illegal” sentence, a lawful sentence, and a “sentence imposed in an illegal manner.” See 3 C. Wright, Federal Practice And Procedure §§ 582-86 at 380-407 (2d ed. 1982 & Supp.1986) [hereinafter Wright & Miller ]. A motion to correct an “illegal” sentence may be made at any time. United States v. Mack, 494 F.2d 1204, 1207 (9th Cir.1974). A petition to correct a lawful sentence or a sentence imposed in an illegal manner, however, must be presented within the 120 day period specified in Rule 35. Wright & Miller, supra, § 587 at 407-15. We have stated that an “illegal” sentence includes “a sentence which is not authorized by the judgment of conviction ...,” Pinedo v. United States, 347 F.2d 142, 148 (9th Cir.1965), cert. denied, 382 U.S. 976, 86 S.Ct. 547, 15 L.Ed.2d 468 (1966), or “in excess of the permissible statutory penalty for the crime,” id., or in violation of the constitution. Mack, 494 F.2d at 1207. See also Hill, 368 U.S. at 430, 82 S.Ct. at 472; United States v. Ames, 743 F.2d 46, 47 (1st Cir.1984), cert. denied, — U.S." }, { "docid": "11573825", "title": "", "text": "in an illegal manner.” See 3 C. Wright, Federal Practice And Procedure §§ 582-86 at 380-407 (2d ed. 1982 & Supp.1986) [hereinafter Wright & Miller ]. A motion to correct an “illegal” sentence may be made at any time. United States v. Mack, 494 F.2d 1204, 1207 (9th Cir.1974). A petition to correct a lawful sentence or a sentence imposed in an illegal manner, however, must be presented within the 120 day period specified in Rule 35. Wright & Miller, supra, § 587 at 407-15. We have stated that an “illegal” sentence includes “a sentence which is not authorized by the judgment of conviction ...,” Pinedo v. United States, 347 F.2d 142, 148 (9th Cir.1965), cert. denied, 382 U.S. 976, 86 S.Ct. 547, 15 L.Ed.2d 468 (1966), or “in excess of the permissible statutory penalty for the crime,” id., or in violation of the constitution. Mack, 494 F.2d at 1207. See also Hill, 368 U.S. at 430, 82 S.Ct. at 472; United States v. Ames, 743 F.2d 46, 47 (1st Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 927, 83 L.Ed.2d 938 (1985); United States v. Becker, 536 F.2d 471, 473 (1st Cir.1976); Wright & Miller, supra, § 582 at 381. In the present case, Fowler alleges two “illegalities” in the district court’s imposition of costs. First, he contends that interpreting 26 U.S.C. § 7206 as mandating the imposition of costs causes an unconstitutional “burden” on the right to cross-examination, jury trial, and compulsory process. Second, he contends that even if section 7206 mandates assessing costs, this provision did not authorize the district court to impose all of the costs against him. Rather, Fowler argues the district court was required to allocate the costs or reduce them by one-half because of Mrs. Fowler’s acquittal and his acquittal on Count Four. Because Fowler attacks the “legality” of the sentence, we may treat his section 2255 petition as a motion under Rule 35. Brooks, 457 F.2d at 971 n. 1 (and cases cited supra ). III STANDARD OF REVIEW Whether the sentence imposed was “illegal” is a question of law reviewed de" }, { "docid": "15152474", "title": "", "text": "is correctable by a court “at any time” and that a sentence “imposed in an illegal manner\" is correctable within 120 days after the sentence is imposed. As the district court here vacated defendant’s sentence nearly three years after its imposition we are clearly faced with a ruling that the original sentence was “illegal.” We do not agree, however, with this judgment. The original sentence was “that the defendant be imprisoned for a period of two (2) years; execution of prison sentence sus pended and defendant placed on probation for a period of one (1) day.” This sentence is not “illegal” by any established criteria. It is not ambiguous with respect to the time and manner in which it is to be served, see Scarponi v. United States, 313 F.2d 950, 953 (10th Cir. 1963); nor is it “internally contradictory,” see United States v. Solomon, 468 F.2d 848, 850 (7th Cir. 1972), cert. denied, 410 U.S. 986, 93 S.Ct. 1513, 36 L.Ed.2d 182 (1973); nor did it omit a term required to be imposed by statute, see United States v. Mack, 494 F.2d 1204 (9th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975); nor was the sentence one which the judgment of conviction did not authorize, see United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Pinedo v. United States, 347 F.2d 142, 148 (9th Cir. 1965), cert. denied, 382 U.S. 976, 86 S.Ct. 547, 15 L.Ed.2d 468 (1966); Sibo v. United States, 332 F.2d 176 (2d Cir. 1964); nor was there any uncertainty as to the substance of the sentence, see Pugliese v. United States, 353 F.2d 514, 516 (1st Cir. 1965). The record indicates that defendant urged the district court to find the sentence illegal on the ground it was a violation of the National Probation Act of 1925, as amended, 18 U.S.C. § 3651. Specifically, it was alleged that there was a patent inconsistency in having a term of probation so much shorter than the period of the suspended sentence, and that a probation period" }, { "docid": "18212866", "title": "", "text": "of the government. Id. at § 215(b), 98 Stat. at 2015-16. These sentencing reforms, of course, do not apply to the instant case. . The facts and circumstances of Dean’s crimes are not relevant to the issues before us. A recitation of those facts is contained in the opinion of the former Fifth Circuit on Dean’s direct appeal from his conviction. See United States v. Dean, 666 F.2d 174 (5th Cir. Unit B), cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982). . The sentence imposed by the district court did not exceed the maximum sentence authorized by the statutes under which Dean was convicted. . Rule 35(b) provides: (b) Reduction of Sentence. The court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. Although Dean did not specify the subdivision of Rule 35 under which his September 15, 1982 motion was made, it is apparent from the content of the motion that Dean was requesting reduction of his sentence under Rule 35(b), and not correction of an illegal sentence under Rule 35(a). . Rule 35(a) provides: (a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. . The Parole Commission’s decision apparently was based on the Commission’s view of the seriousness of Dean’s crimes. Dean does not challenge the validity of the Parole Commission’s determination of his parole eligibility. . The district court entered the following order: ORDER Roscoe Emory Dean, Jr. was convicted, after a jury trial" }, { "docid": "10568879", "title": "", "text": "years in prison on Count Two, and two years on Count Three. Johnson appealed his sentence, and we affirmed. United States v. Johnson, 822 F.2d 62 (9th Cir.1987). On February 5, 1991, Johnson filed a motion to correct his two-year sentence on Count Three under former Fed.R.Crim.P. 35(a) (1986). In his motion, Johnson contended (1) Oregon law did not prohibit him from possessing firearms; (2) his prior felony conviction was reduced to a misdemeanor upon completion of his probation; and (3) the evidence introduced at trial was insufficient to establish actual or constructive possession of the firearms. The district court denied his motion in an Order filed April 12, 1991. On May 15, 1991, Johnson filed a subsequent action in district court contesting the district court’s Order denying his Rule 35(a) motion. We construed the filing of this subsequent action as a timely notice of appeal in our Order filed May 12, 1992. II First, we dispose of some jurisdictional and procedural complications. The old version of Rule 35(a) applicable to this case provides: (a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. Fed.R.Crim.P. 35(a) (1986). “Rule 35 distinguishes among motions to reduce or correct an ‘illegal’ sentence, a lawful sentence, and a ‘sentence imposed in an illegal manner.’ ” United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.1986), cert. denied, 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 153 (1987). “An illegal sentence may be corrected at any time, but a motion to reduce a lawful sentence or to correct a sentence imposed in an illegal manner must be made within the 120-day period prescribed by Rule 35.” United States v. Stump, 914 F.2d 170, 172 (9th Cir.1990). We have defined an illegal sentence as one which is not authorized by the judgment of conviction, or is in excess of the permissible statutory penalty for the crime, or is in violation of the Constitution. Fowler, 794 F.2d at 1449. Johnson argues the sentence" } ]

[ { "docid": "22723515", "title": "", "text": "Fed. 1993) (reviewing de novo); Cincinnati Ins. Co. v. Holbrook, 867 F. 2d 1330, 1333 (CA11 1989) (same). We now affirm. II Over 50 years ago, in Brillhart v. Excess Ins. Co. of America, 316 U. S. 491 (1942), this Court addressed circumstances virtually identical to those present in the case before us today. An insurer, anticipating a coercive suit, sought a declaration in federal court of nonliability on an insurance policy. The District Court dismissed the action in favor of pending state garnishment proceedings, to which the insurer had been added as a defendant. The Court of Appeals reversed, finding an abuse of discretion, and ordered the District Court to proceed to the merits. Reversing the Court of Appeals and remanding to the District Court, this Court held that, “[although the District Court had jurisdiction of the suit under the Federal Declaratory Judgments Act, it was under no compulsion to exercise that jurisdiction.” Id., at 494. The Court explained that “[ojrdinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties.” Id., at 495. The question for a district court presented with a suit under the Declaratory Judgment Act, the Court found, is “whether the questions in controversy between the parties to the federal suit, and which are not foreclosed under the applicable substantive law, can better be settled in the proceeding pending in the state court.” Ibid. Brillhart makes clear that district courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites. Although Brillhart did not set out an exclusive list of factors governing the district court’s exercise of this discretion, it did provide some useful guidance in that regard. The Court indicated, for example, that in deciding whether to enter a stay, a district court should examine “the scope of the pending state court proceeding and the nature of" } ]

[ { "docid": "9733594", "title": "", "text": "in clarifying and settling the legal relations in issue, and ... will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Guerra v. Sutton, 783 F.2d 1371, 1376 (9th Cir.1986) (quoting Bilbrey by Bilbrey v. Brown, 738 F.2d 1462, 1470 (9th Cir.1984)). However, a district court ordinarily should not exercise its discretion to grant declaratory relief ‘“where another suit is pending in state court presenting the same issues, not governed by federal law, between the same parties.’” Continental Casualty Co. v. Robsac Industry, 947 F.2d 1367, 1370 (9th Cir.1991) (quoting Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct. 1173, 1175, 86 L.Ed. 1620 (1942)). In such cases, there is a presumption that the entire suit should be heard in state court. Chamberlain v. Allstate Ins. Co., 931 F.2d 1361, 1366-67 (9th Cir.1991). There are several rationales for the Brill-hart presumption against federal declaratory judgment jurisdiction when there is a parallel state proceeding: (1) avoiding needless decisions of state law; (2) discouraging forum shopping; and (3) averting duplicative litigation. Continental Casualty, 947 F.2d at 1391. The Declaratory Judgment Act is not to be invoked to deprive a plaintiff of his conventional choice of forum and timing, precipitating a disorderly race to the courthouse. Gribin v. Hammer Galleries, 793 F.Supp. 233, 234-35 (C.D.Cal.1992). Certain countervailing factors may help overcome the presumption in individual cases. For example, if the federal action will continue even if the claim for declaratory relief is dismissed, or if the federal litigation is far enough advanced that declining jurisdiction would be a waste of judicial resources, then the federal court may proceed. See, Chamberlain, 931 F.2d at 1373-74. In the present case, there is a pending state court action involving the same issues, not governed by federal law, between the same parties. Therefore, the presump- ■ tion against jurisdiction applies. The rationales behind the presumption support the conclusion that this Court should decline jurisdiction. This case involves exclusively questions of state law, Plaintiffs filed the declaratory relief action in order to secure a California forum, and the Ohio suit" }, { "docid": "19695122", "title": "", "text": "ALARCON, Circuit Judge: Budget Renb-A-Car Systems, Inc. (“Budget”) filed this diversity action in the district court for a declaration regarding inter alia Evangeline Perry’s duty to indemnify Budget for any amount that Budget may be required to pay to Ray Ines and Jeffrey Hobar to settle their claim for damages for the injuries they suffered in a collision with a vehicle Budget rented to Perry. The district court issued a decision on the merits of Budget’s claim pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, without maMng any reference to the discretionary nature of its jurisdiction. We review a district court’s exercise of its discretion to grant a declaration for abuse of discretion. We must decide whether we should vacate the district court’s decision on the merits because we cannot determine if it considered the relevant factors that inform the exercise of the discretionary jurisdiction to issue a declaration. We conclude that we must vacate the district court’s decision on the merits and remand with directions to reconsider the exercise of its discretionaiy jurisdiction. The record does not disclose if the district court considered whether this action was filed in reaction to the injured persons’ demand for compensation for the negligent operation of a vehicle rented to Perry by Budget, and whether the novel state law issues raised by Budget could have been resolved in an action in a Hawaii court for indemnification or for declaratory relief. Consistent with established precedent, such factors must be weighed by the district court in the first instance so that we will have a complete record to review in determining whether it abused its discretion in reaching the merits of Budget’s claim. I Budget rented an automobile to Evangeline Perry on October 29, 1992. Perry permitted Robert Crawford to. drive the rental car on November 3, 1992. On that date, while Crawford was driving the vehicle, a collision occurred with a vehicle driven by Ines. Ines and Hobar, his passenger, were injured. Ines and Hobar demanded that Crawford compensate them for their injuries. Crawford then requested indemnification from Budget. Budget filed this" }, { "docid": "19695137", "title": "", "text": "diversity jurisdiction to bring a declaratory judgment action against an insured on an issue of coverage. Id. at 1199. Merritt was decided before the Supreme Court’s decision in Wilton. In Wilton, the Court held that the fact that no state action was pending at the time the plaintiff filed an action pursuant to the Declaratory Judgment Act is not dispositive in resolving the question whether a district court should exercise its discretionary jurisdiction. Wilton, - U.S. at -, 115 S.Ct. at 2144. Our comment in Merritt that “[w]e know of no authority ... that an insurer is barred from invoking diversity jurisdiction to bring a declaratory judgment action against an insured on an issue of coverage” is clearly consistent with the terms of the Declaratory Judgment Aet. Merritt, 974 F.2d at 1199. Because the state court in Merritt stayed its parallel proceedings until the federal action was finally determined, it was not necessary for us to consider whether the exercise by the district court of its discretionary jurisdiction should be affected by its duty to consider such factors as comity, sound judicial administration, and forum shopping. Wilton teaches us that before exercising its discretionary jurisdiction under the Declaratory Judgment Aet, a district court must consider whether a related state court action was filed after federal declaratory relief was requested. We are persuaded that the same federalism concerns against the use of the Declaratory Judgment Act as a forum shopping device, and the policy against “having federal courts needlessly determine issues of state law,” Chamberlain v. Allstate Ins. Co., 931 F.2d 1361, 1367 (9th Cir.1991), are also present when a federal plaintiff seeks declaratory relief in anticipation that a related state court proceeding may be filed. The fact that the dispute between the tort-feasor and the victims of his conduct was settled after Budget filed for declaratory relief in federal court, did not resolve the question whether, under Hawaii law, Budget was entitled to indemnification from Crawford. This controversy existed at the time Budget chose a federal forum for a declaration under Hawaii law. In balancing the relevant factors under such" }, { "docid": "3678782", "title": "", "text": "2201, 2202 (1988). Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494, 62 S.Ct. 1173, 1175, 86 L.Ed. 1620 (1942). The Court said, “Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties.” Id. at 495, 62 S.Ct. at 1175-76. Since then, the Court reaffirmed its “prior holding that a federal district court should, in the exercise of discretion, decline to exercise diversity jurisdiction over a declaratory judgment action raising issues of state law when those same issues are being presented contemporaneously to state courts.” Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 126, 88 S.Ct. 733, 746, 19 L.Ed.2d 936 (1968) (citing Brillhart, 316 U.S. 491). Very recently, the Court reiterated the position: “As we have noted, the Declaratory Judgment Act affords the district court some discretion in determining whether or not to exercise that jurisdiction, even when it has been established.” Cardinal Chem. Co. v. Morton Int'l Inc., — U.S. —, —, 113 S.Ct. 1967, 1974 n. 17, 124 L.Ed.2d 1 (1993) (citing Brillhart, 316 U.S. at 494-96, 62 S.Ct. at 1175-76). The language of the Act dictates that result: “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. . . .” 28 U.S.C. § 2201 (emphasis added). After Brillhart, the Supreme Court announced two decisions that elaborated upon the discretion vested in the district court to abstain from the exercise of federal jurisdiction when a parallel state action is pending, in essence articulating a new abstention doctrine. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); Moses H. Cone Memorial Hasp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). From these two cases emerged the" }, { "docid": "19695126", "title": "", "text": "court proceeding “because nothing was filed” in state court. Budget acknowledged, however, that it sought resolution of these issues in anticipation that the claims of Ines and Hobar might ripen into a lawsuit. II Our initial duty, in reviewing an order granting declaratory relief in a diversity action involving questions of state law, is to determine whether the district court abused its discretion in determining that the relevant factors justified the exercise of its jurisdiction. Wilton v. Seven Falls Co., - U.S. -, -, 115 S.Ct. 2137, 2144, 132 L.Ed.2d 214 (1995). Prior to exercising its discretionary jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201, a district court must consider the impact on sound judicial administration, and federalism concerns against forum shopping that may result from the issuance of a declaration regarding unresolved issues of state law in a diversity action. Brillhart v. Excess Ins. Co., 316 U.S. 491, 495-98, 62 S.Ct. 1173, 1175-77, 86 L.Ed. 1620 (1942); Robsac, 947 F.2d at 1371. In Brillhart, the Supreme Court ruled that, before declining to exercise its discretionary jurisdiction to issue a declaration, a district court must expressly indicate that it has considered whether existing remedies and procedures would permit the plaintiff to obtain a resolution of the issues set forth in the complaint in state court. Brillhart, 316 U.S. at 495-96, 62 S.Ct. at 1175-76. The Court vacated the reversal by the Tenth Circuit of the district court’s dismissal of an action for declaratory relief. The Court held that the district court must determine in the first instance whether the plaintiff could have presented its claims in a proceeding that was pending in state court at the time the federal action was.filed. Id. at 497-98, 62 S.Ct. at 1176-77. The court expressed its rationale in the following words: “Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties.” Id. at 495, 62 S.Ct. at 1175-76. Where the" }, { "docid": "19695125", "title": "", "text": "judicial administration, and the national policy against forum shopping before issuing a decision, on the merits in an action filed pursuant to the Declaratory Judgment Act. On November 1, 1996, we directed the. parties to “be prepared to address at oral argument ... the propriety of the district court’s exercise of jurisdiction over this declaratory judgment action, and the applicability, if any, of Employers Reinsurance Corp. v. Karussos, 65 F.3d 796 (9th Cir.1995); American Nat’l Fire Ins. Co. v. Hungerford, 53 F.3d 1012 (9th Cir.1995); Continental Casualty Co. v. Robsac Indus., 947 F.2d 1367, 1369 (9th Cir.1991).” During oral argument, Perry pointed to several unrelated cases pending in the Hawaii courts that present-the same legal issues as those presented here, in support of her contention that the district court should have declined to issue a decision on the merits of Budget’s claim. Budget urged us to affirm because no related state court proceeding was pending when this declaratory judgment action was filed. Budget also maintained that this action is not reactive to an anticipated state court proceeding “because nothing was filed” in state court. Budget acknowledged, however, that it sought resolution of these issues in anticipation that the claims of Ines and Hobar might ripen into a lawsuit. II Our initial duty, in reviewing an order granting declaratory relief in a diversity action involving questions of state law, is to determine whether the district court abused its discretion in determining that the relevant factors justified the exercise of its jurisdiction. Wilton v. Seven Falls Co., - U.S. -, -, 115 S.Ct. 2137, 2144, 132 L.Ed.2d 214 (1995). Prior to exercising its discretionary jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201, a district court must consider the impact on sound judicial administration, and federalism concerns against forum shopping that may result from the issuance of a declaration regarding unresolved issues of state law in a diversity action. Brillhart v. Excess Ins. Co., 316 U.S. 491, 495-98, 62 S.Ct. 1173, 1175-77, 86 L.Ed. 1620 (1942); Robsac, 947 F.2d at 1371. In Brillhart, the Supreme Court ruled that, before declining to" }, { "docid": "19695133", "title": "", "text": "Thus, we conclude that the fact that no related state court action was pending at the time Budget filed its action pursuant to the Declaratory Judgment Act did not relieve the district court of its duty to consider all the relevant factors set forth in Brillhart that were in existence on the date it exercised its discretionary jurisdiction. Unlike the situation in Wilton, however, here the dispute between Perry and Ines and Hobar was settled after Budget’s action for declaratory relief was filed in federal court. Thus, we must determine whether the settlement of Ines and Hobar’s dispute, without the filing of a state court action, made it unnecessary for the district court to weigh considerations of comity, sound judicial ad ministration, and the policy against forum shopping before ruling on the merits of Budget’s claim for declaratory relief. Neither the Supreme Court nor this circuit has resolved this question. In Wilton, the Court expressly declined to do so. The Court stated: “We do not attempt at this time to delineate the outer boundaries of [the district court’s] discretion in ... eases in which there are no parallel state proceedings.” Wilton, - U.S. at -, 115 S.Ct. at 2144. In this circuit, we have observed, but not decided, that a district court should take into consideration, in determining whether to exercise its discretionary jurisdiction under the Declaratory Judgment Act, whether the action was filed in reaction to the threat that a related proceeding would be filed in state court. In Golden Eagle, we commented as follows: “Clearly, the existence of a parallel state proceeding would be a major factor in the district court’s consideration of ‘practicality and wise judicial administration,’ but the absence of a parallel state proceeding is not necessarily dispositive; the potential for such a proceeding may suffice.” 95 F.3d at 810 (quotation omitted). We made a similar observation in Robsac. In Robsac, the insured filed a breach of contract action against its insurer and fifty other defendants in state court. Because some of these fifty defendants were residents of the insured’s state, the state court proceeding was" }, { "docid": "19695127", "title": "", "text": "exercise its discretionary jurisdiction to issue a declaration, a district court must expressly indicate that it has considered whether existing remedies and procedures would permit the plaintiff to obtain a resolution of the issues set forth in the complaint in state court. Brillhart, 316 U.S. at 495-96, 62 S.Ct. at 1175-76. The Court vacated the reversal by the Tenth Circuit of the district court’s dismissal of an action for declaratory relief. The Court held that the district court must determine in the first instance whether the plaintiff could have presented its claims in a proceeding that was pending in state court at the time the federal action was.filed. Id. at 497-98, 62 S.Ct. at 1176-77. The court expressed its rationale in the following words: “Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties.” Id. at 495, 62 S.Ct. at 1175-76. Where the record does not disclose with certainty that the district court’s exercise of jurisdiction was improper, “the Supreme Court’s decision in Wilton compels us to remand this matter to the district court” to exercise its discretion in the first instance. Government Employees Ins. Co. v. Dizol, 108 F.3d 999, 1008 (9th Cir.1997) (citing Golden Eagle Ins. Co. v. Travelers Cos., 95 F.3d 807, 810-11 (9th Cir.1996)); Karussos, 65 F.3d at 799-800 n. 1 (remand appropriate “[w]here the record reveals facts and circumstances that could justify a district court’s discretionary decision to exercise its jurisdiction_”). Ill Budget initiated this action in federal court seeking a declaration that it had a right to indemnification from Perry, because she had permitted an unauthorized person to drive the rental vehicle. On the date Budget’s claim for declaratory relief was filed, no related state court proceeding was pending. Ines and Hobar, the persons injured in a collision with a Budget rental car, informed Crawford, the driver, of their demand that he compensate them for their injuries. Ines and Hobar settled their" }, { "docid": "19695131", "title": "", "text": "26, 1993, the Hill Group filed a nonremovable action in state court asserting claims for breach of contract and breach of the duty of good faith and fair dealing. The Hill Group then filed a motion in federal court to stay or dismiss the declaratory judgment action. Id. In deciding whether to stay the federal action pending the outcome of the state court proceeding, the district court in Wilton recognized that it “may consider whether the declaratory judgment action was filed in anticipation of a trial on the same issues in state court.” Wilton v. Seven Falls Co., 901 F.Supp. 243, 244 (S.D.Tex.1993) (citing Rowan Cos., Inc. v. Griffin, 876 F.2d 26, 29 (5th Cir.1989) (citing Brillhart, 316 U.S. at 494-95, 62 S.Ct. at 1175-76)). In ordering a stay of the federal action, without issuing a decision on the merits, the district court stated that the exercise of its discretionary jurisdiction to grant declaratory judgment would result in piecemeal litigation, and would “reward plaintiffs’ attempts to forum shop.” Wilton, 901 F.Supp. at 244. The Fifth Circuit affirmed the district court’s order under the abuse of discretion standard. Wilton v. Seven Falls Co., 41 F.3d 934, 935 (5th Cir.1994). The Supreme Court affirmed, concluding that the district court “acted within its bounds in staying this action for declaratory relief where parallel proceedings, presenting opportunity for ventilation of the same state law issues, were underway in state court.” Wilton, - U.S. at -, 115 S.Ct. at 2144. As in Wilton, Budget filed this action at a time when no state court proceeding was pending, for a determination of its liability with respect to the demands of Ines and Hobar against Crawford, and its ability to proceed against Perry for indemnification. Wilton makes clear that a district court’s discretion to decline jurisdiction is not dependent on the pendency of a state court proceeding at the time the federal declaratory judgment action is filed. In Wilton, both actions for declaratory relief were filed before the Hill Group filed an action against the. London Underwriters in state court. Id. at -, 115 S.Ct. at 2l39." }, { "docid": "19695128", "title": "", "text": "record does not disclose with certainty that the district court’s exercise of jurisdiction was improper, “the Supreme Court’s decision in Wilton compels us to remand this matter to the district court” to exercise its discretion in the first instance. Government Employees Ins. Co. v. Dizol, 108 F.3d 999, 1008 (9th Cir.1997) (citing Golden Eagle Ins. Co. v. Travelers Cos., 95 F.3d 807, 810-11 (9th Cir.1996)); Karussos, 65 F.3d at 799-800 n. 1 (remand appropriate “[w]here the record reveals facts and circumstances that could justify a district court’s discretionary decision to exercise its jurisdiction_”). Ill Budget initiated this action in federal court seeking a declaration that it had a right to indemnification from Perry, because she had permitted an unauthorized person to drive the rental vehicle. On the date Budget’s claim for declaratory relief was filed, no related state court proceeding was pending. Ines and Hobar, the persons injured in a collision with a Budget rental car, informed Crawford, the driver, of their demand that he compensate them for their injuries. Ines and Hobar settled their dispute with Crawford without filing an action in state court. We must decide whether a district court is relieved of its duty under Brillhart to determine, in the first instance, whether it should exercise its discretionary jurisdiction to resolve state law questions in a claim filed pursuant to the Declaratory Judgment Act where there is no state court proceeding pending on the date the federal action is filed. This issue has not been squarely presented in this circuit. The factual scenario presented to the Supreme Court in Wilton presents us with a sturdy foundation for our analysis of this novel question. In Wilton, a group of insurance companies filed an action under the Declaratory Judgment Act in reaction to a dispute between itself and its insured that had not yet resulted in the filing of a state court action. — U.S. at-, 115 S.Ct. at 2139-40. Earlier, in October 1992, in an action arising out of a dispute over-property, a jury verdict was rendered against the insureds (“the Hill Group”) for one hundred million dollars." }, { "docid": "18032538", "title": "", "text": "It sought a determination that EFI had no liability under state law. To support its position that the district court should not have dismissed the counterclaim, EFI makes several arguments. EFI asserts that for the federal court to determine whether EFI violated state security laws in ruling on the declaratory judgment counterclaims would not have involved a needless determination of state law. EFI also contends that Smith engaged in forum shopping. And EFI, while acknowledging that the federal court counterclaims would create some duplica-tive litigation, asserts that a \"parallel litigation is a lesser evil\" than precluding a federal review of federal issues relating to the PSLRA. Our standard of review leads us to consider whether the district court abused its discretion by dismissing EFI's counterclaim. Gov't Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1223 (9th Cir.1998) (en banc). While 28 U.S.C. § 1367 grants federal courts supplemental jurisdiction, the United States Supreme Court has held that district courts may decline to exercise jurisdiction over supplemental state law claims in the interest of judicial economy, convenience, fairness and comity. City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 172-73, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). These rules make clear that the district court had discretion to decline to exercise jurisdiction on the state law claims. In Brillhart v. Excess Insurance Company of America, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), the Supreme Court held expressly that a district court should consider several factors when determining whether to exercise jurisdiction over a declaratory relief claim regarding state law issues. In Brilihart, an insurance company brought a declaratory judgment action in federal court to determine its rights under an insurance contract, when a pending suit in state court presented the same issue. Id. at 492-93, 62 S.Ct. 1173. The district court dismissed the action, but the appellate court reversed. Id. at 494-95, 62 S.Ct. 1173. The Supreme Court remanded to the district court and outlined the specific factors for the district court to consider in exercising its discretion. Id. at 494-98, 62 S.Ct. 1173. We have" }, { "docid": "10741366", "title": "", "text": "U.S.C. §§ 2201-2202 itself, which provides that district courts “may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). The discretionary nature of the Act led the Supreme Court to hold in Brillhart and Wilton that district courts have substantial discretion in deciding whether to declare the rights of litigants and may, in the sound exercise of their discretion, stay or dismiss an action seeking a declaratory judgment in favor of an ongoing state court case. See Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494-95, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942); Wilton, 515 U.S. at 288, 115 S.Ct. 2137 (noting “a district court is authorized, in the sound exercise of its discretion, to stay or to dismiss an action seeking a declaratory judgment”). As the Supreme Court explained in Brillhart, there is no set criteria for when a court should exercise its discretion to abstain. 316 U.S. at 495, 62 S.Ct. 1173 (“We do not now attempt a comprehensive enumeration of what in other cases may be revealed as relevant factors governing the exercise of a District Court’s discretion.”). But the classic example of when abstention is proper occurs where, as it is here, solely declaratory relief is sought and parallel state proceedings are ongoing. Vulcan Materials, 569 F.3d at 715. That does not mean that abstention is limited to parallel proceedings. Nationwide Ins. v. Zavalis, 52 F.3d 689, 692 (7th Cir.1995). But as the Supreme Court has made clear, the Wilton/Brillhart abstention doctrine appropriately applies in a diversity case where a declaratory judgment is sought and a parallel state proceeding also exists. Wilton, 515 U.S. at 283, 115 S.Ct. 2137; Provident Tradesmens Bk. & Tr. Co. v. Patterson, 390 U.S. 102, 126, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968) (noting “we reaffirm our prior holding that a federal district court should, in the exercise of discretion, decline to exercise jurisdiction over a diversity action raising issues of state law when those same issues are being presented contemporaneously to state courts”). The question then becomes whether the" }, { "docid": "19695124", "title": "", "text": "diversity action seeking a declaration inter alia that it had a right to indemnification from Perry because she had permitted an unauthorized person to drive the rental car. After Budget initiated this action in federal court, Ines and Hobar settled their dispute with Crawford without filing a court action. Budget paid the amount agreed to in the settlement. In its motion for a summary judgment, Budget did not discuss the discretionary nature of the court’s jurisdiction, nor did it point to any circumstances that would warrant the issuance of a declaration. Perry also failed to refer to this issue in her opposition to Budget’s motion for a summary judgment. In explaining the basis for its decision on the merits of Budget’s state law claim, the district court did not discuss the circumstances that it relied upon in concluding that this was a proper case in which to issue a declaration. In their briefs before this court, the parties did not refer to the duty of the district court to consider the interests of comity, sound judicial administration, and the national policy against forum shopping before issuing a decision, on the merits in an action filed pursuant to the Declaratory Judgment Act. On November 1, 1996, we directed the. parties to “be prepared to address at oral argument ... the propriety of the district court’s exercise of jurisdiction over this declaratory judgment action, and the applicability, if any, of Employers Reinsurance Corp. v. Karussos, 65 F.3d 796 (9th Cir.1995); American Nat’l Fire Ins. Co. v. Hungerford, 53 F.3d 1012 (9th Cir.1995); Continental Casualty Co. v. Robsac Indus., 947 F.2d 1367, 1369 (9th Cir.1991).” During oral argument, Perry pointed to several unrelated cases pending in the Hawaii courts that present-the same legal issues as those presented here, in support of her contention that the district court should have declined to issue a decision on the merits of Budget’s claim. Budget urged us to affirm because no related state court proceeding was pending when this declaratory judgment action was filed. Budget also maintained that this action is not reactive to an anticipated state" }, { "docid": "19695132", "title": "", "text": "Circuit affirmed the district court’s order under the abuse of discretion standard. Wilton v. Seven Falls Co., 41 F.3d 934, 935 (5th Cir.1994). The Supreme Court affirmed, concluding that the district court “acted within its bounds in staying this action for declaratory relief where parallel proceedings, presenting opportunity for ventilation of the same state law issues, were underway in state court.” Wilton, - U.S. at -, 115 S.Ct. at 2144. As in Wilton, Budget filed this action at a time when no state court proceeding was pending, for a determination of its liability with respect to the demands of Ines and Hobar against Crawford, and its ability to proceed against Perry for indemnification. Wilton makes clear that a district court’s discretion to decline jurisdiction is not dependent on the pendency of a state court proceeding at the time the federal declaratory judgment action is filed. In Wilton, both actions for declaratory relief were filed before the Hill Group filed an action against the. London Underwriters in state court. Id. at -, 115 S.Ct. at 2l39. Thus, we conclude that the fact that no related state court action was pending at the time Budget filed its action pursuant to the Declaratory Judgment Act did not relieve the district court of its duty to consider all the relevant factors set forth in Brillhart that were in existence on the date it exercised its discretionary jurisdiction. Unlike the situation in Wilton, however, here the dispute between Perry and Ines and Hobar was settled after Budget’s action for declaratory relief was filed in federal court. Thus, we must determine whether the settlement of Ines and Hobar’s dispute, without the filing of a state court action, made it unnecessary for the district court to weigh considerations of comity, sound judicial ad ministration, and the policy against forum shopping before ruling on the merits of Budget’s claim for declaratory relief. Neither the Supreme Court nor this circuit has resolved this question. In Wilton, the Court expressly declined to do so. The Court stated: “We do not attempt at this time to delineate the outer boundaries of" }, { "docid": "3678781", "title": "", "text": "in state court, it moved to dismiss or to stay or, in the alternative, to transfer USF & G’s federal aetion, and by the end of the year the case was transferred to the United States District Court for the Western District of Arkansas in El Dorado. Shortly thereafter, Murphy renewed its motion to dismiss or stay the federal action. In January 1993 the Magistrate Judge recommended the motion be denied, but the District Court rejected the Magistrate’s Findings and Recommendations on April 1, 1993, and ordered the federal action stayed. This appeal followed. Initially we must resolve a dispute between the parties regarding the applicable law and appropriate standard of review, and at the same time reconcile what might appear to be conflicting decisions from this Court on the same issues. USF & G’s suit is for a declaratory judgment and was brought under the District Court’s diversity jurisdiction. Years ago, the Supreme Court noted that district courts are “under no compulsion to exercise” their jurisdiction under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1988). Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494, 62 S.Ct. 1173, 1175, 86 L.Ed. 1620 (1942). The Court said, “Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties.” Id. at 495, 62 S.Ct. at 1175-76. Since then, the Court reaffirmed its “prior holding that a federal district court should, in the exercise of discretion, decline to exercise diversity jurisdiction over a declaratory judgment action raising issues of state law when those same issues are being presented contemporaneously to state courts.” Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 126, 88 S.Ct. 733, 746, 19 L.Ed.2d 936 (1968) (citing Brillhart, 316 U.S. 491). Very recently, the Court reiterated the position: “As we have noted, the Declaratory Judgment Act affords the district court some discretion in determining whether or not to exercise that jurisdiction, even" }, { "docid": "500594", "title": "", "text": "a district court should exercise its discretion to dismiss a case is presented when there exists a parallel proceeding in state court. The decision not to exercise jurisdiction is appropriate under such circumstances, because “[o]rdinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties.” Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct. 1173, 1175-76, 86 L.Ed. 1620 (1942). In this circuit we have held that federal courts should: decline to assert jurisdiction in insurance coverage and other declaratory relief actions presenting only issues of state law during the pendency of parallel proceedings in state court unless there are circumstances present to warrant an exception to that rule. Employers Reinsurance Corp. v. Karussos, 65 F.3d 796, 798 (9th Cir.1995) (internal quotations omitted); American National Fire Insurance Company v. Hungerford, 53 F.3d 1012, 1019 (9th Cir.1995). This rule is intended to serve several purposes, including: “the conservation of judicial resources, the avoidance of duplicative litigation, [and] the avoidance of the needless resolution of state law questions in federal court....” Karussos, 65 F.3d at 800. We have similarly indicated that a district court should exercise its discretion to decline jurisdiction when the federal action has simply been filed in anticipation of an impending state court suit; for example, when an insurer anticipates that its insured intends to file a non-removable state court action, it “rush[es]” to file a declaratory judgment action in federal court in hopes of “preempt[ing] any state court proceeding.” Under these circumstances, the federal case is still deemed “reactive” to the state case, and the district court should consider dismissing the federal case pursuant to its discretion under the Act. Continental Casualty Company v. Robsac Industries, 947 F.2d 1367, 1372-73 (9th Cir.1991). The instant action, however, is distinct from either of the above types of eases. The federal action here is neither “reactive” to, nor duplicative of, any parallel state proceeding. There was no state" }, { "docid": "2774255", "title": "", "text": "not apply where the Declaratory Judgments Act, 28 U.S.C. § 2201, is involved.” Chamberlain v. Allstate Ins. Co., 931 F.2d 1361, 1366 (9th Cir.1991). Accordingly, the district court did not err in failing to abstain under the Colorado River doctrine. Nonetheless, in light of Robsac’s stay request, abstention is required under a different but related doctrine — the one applicable to declaratory relief cases. This doctrine was first set forth in Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942). It stems from the fact that by its express terms the Declaratory Judgments Act makes the granting of declaratory relief discretionary. 28 U.S.C. § 2201(a) (“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”) (emphasis added). At the time that Robsac moved for a stay our cases could have been read to imply that abstention under Colorado River and abstention pursuant to the terms of the Declaratory Judgments Act are governed by the same standards. Compare Transamerica Occidental Life Ins. Co. v. Digregorio, 811 F.2d 1249, 1254 (9th Cir.1987) with Mobil Oil Corp. v. City of Long Beach, 772 F.2d 534, 542 (9th Cir.1985). We have recently made clear, however, that this is not the case. See Chamberlain, 931 F.2d at 1366 n. 1. In Chamberlain, we narrowed considerably the discretion courts have to issue declaratory relief. We held that quite apart from any considerations under Colorado River, a district court’s discretion to grant relief under the Declaratory Judgments Act ordinarily should not be exercised “where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties.” Id. at 1366 (quoting Brillhart, 316 U.S. at 495, 62 S.Ct. at 1176). The record does not indicate why the district court decided to exercise its jurisdiction. However, this does not prevent us from considering the issue, because “[w]e review de novo the district court’s decision to exercise its jurisdiction under the Declaratory Judgments Act when a state" }, { "docid": "18032539", "title": "", "text": "convenience, fairness and comity. City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 172-73, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). These rules make clear that the district court had discretion to decline to exercise jurisdiction on the state law claims. In Brillhart v. Excess Insurance Company of America, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), the Supreme Court held expressly that a district court should consider several factors when determining whether to exercise jurisdiction over a declaratory relief claim regarding state law issues. In Brilihart, an insurance company brought a declaratory judgment action in federal court to determine its rights under an insurance contract, when a pending suit in state court presented the same issue. Id. at 492-93, 62 S.Ct. 1173. The district court dismissed the action, but the appellate court reversed. Id. at 494-95, 62 S.Ct. 1173. The Supreme Court remanded to the district court and outlined the specific factors for the district court to consider in exercising its discretion. Id. at 494-98, 62 S.Ct. 1173. We have previously described the Brill-hart factors as: (1) whether a refusal to entertain the request for declaratory relief avoids needless decisions of state law by the federal court; (2) whether the action is a means of forum shopping; and (3) whether dismissal of the claim for declaratory relief would avoid duplicative litigation. Cont'l Cas. Co. v. Robsac Indus., 947 F.2d 1367, 1371 (9th Cir.1991), overraled on other grounds, Gov't Employees, 133 F.3d at 1220. Considering the first factor, EFI's counterclaim asked the district court to determine whether \"the facts as alleged in the Complaint are . .. sufficient to plead violations of California Corporations Code §~ 25400 and 25500.\" The Steele action in state court presents precisely the same issues. Because California law governs, the determination whether California secu rities laws were violated will in the normal course of the state suit be decided by California state courts. For the federal court to retain jurisdiction to give declaratory judgment on the same claims would result in a needless determination of state law. The first factor weighs" }, { "docid": "12121564", "title": "", "text": "of Colorado River. III. A. The Declaratory Judgment Act permits the discretionary exercise of jurisdiction over suits otherwise falling under federal subject matter jurisdiction. In relevant part the Declaratory Judgment Act provides: 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. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. 28 U.S.C. § 2201. We have previously noted that the Declaratory Judgment Act “should have a liberal interpretation.” Exxon Corp. v. Federal Trade Commission, 588 F.2d 895, 900 (3d Cir.1978). According to the Advisory Committee Note to Federal Rule of Civil Procedure 57 entitled Declara tory Judgments, “the existence or non-existence of any right, duty, ... or immunity ... may be declared.” As the district court correctly noted, Rule 57 does not preclude the exercise of jurisdiction where another adequate remedy exists. One commentator formulates the test for whether the district court should exercise federal jurisdiction when a parallel state court action exists as a determination of “which will most fully serve the needs and convenience of the parties and provide a comprehensive solution of the general conflict.” 10A Wright, Miller, Kane, Federal Practice and Procedure § 2758 (West 1983). In Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), the Supreme Court provided guidance for the exercise of this discretion. There the district court had granted a motion to dismiss for the reason that a related case was currently pending in a state court without inquiry into the adequacy of the state forum to decide the respondent's claims.\" On review, the Supreme Court determined that an evaluation of the adequacy and reach of the state court proceeding was critical, suggesting “inquiry into the scope of the pending state court proceeding and the nature of defenses open there.” Id. at 495, 62 5.Ct." }, { "docid": "1037226", "title": "", "text": "filed a response in support of remand. Weighing the factors for deciding whether to abstain from entertaining declaratory judgment actions set forth in Reifer v. Westport Insurance Corp., 751 F.3d 129, 143-46 (3d Cir. 2014), the District Court sided with the Kellys and Carman. The Court’s conclusion rested heavily on its determination that the still-pending state Tort Action constituted a parallel proceeding to the Declaratory Action. By order issued on. September 29, 2015, the District Court declined to hear the lawsuit and remanded the action to state court. With the motion resolved, the Court did not address whether realignment of the parties to secure diversity jurisdiction was proper. Maxum timely appealed. II. A. A district court’s discretionary remand in a declaratory judgment action is a final decision that is appealable under 28 U.S.C. § 1291. Reifer, 751 F.3d at 133. We review the District Court’s decision for abuse of discretion. Id. at 137-39. In doing so, we review legal questions, including the question of whether state court and federal court proceedings are parallel, de novo. See Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, Inc., 571 F.3d 299, 307 (3d Cir. 2009). B. The Kellys seek a declaratory judgment, a remedy made available to the federal courts by the DJA. That statute provides that federal courts “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.G. § 2201(a) (emphasis added). Granting a declaratory judgment is therefore discretionary and a court may abstain from entertaining an action seeking only declaratory relief. Reifer, 751 F.3d at 134 (citing Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942)); Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (“[District courts possess discretion in determining whether and when to entertain an action under the [D JA], even when the suit otherwise satisfies subject matter jurisdictional prerequisites.”); see also Rarick v. Federated Serv. Ins. Co., 852 F.3d 223, 229 (3d Cir. 2017)" } ]

[ { "docid": "22401906", "title": "", "text": "reasons below, we agree with the first and third contentions, and need not decide the second. A. The § 1983 Claims A municipality and its supervisory officials may not be held liable in a § 1983 action for the conduct of a lower-echelon employee solely on the basis of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). In order to establish the liability of such defendants in an action under § 1983 for unconstitutional acts by such employees, a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79, 106 S.Ct. 1292, 1297-98, 89 L.Ed.2d 452 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985); Monell v. Department of Social Services, 436 U.S. at 690, 694, 98 S.Ct. at 2035, 2037; Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir.1986); Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir.1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 685 (1987); Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). Though this does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation, see Villante v. Department of Corrections, 786 F.2d 516, 519 (2d Cir.1986), a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy, see, e.g., City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989); Fiacco v. City of Rensselaer, 783 F.2d at 328. The inference that a policy existed may, however, be drawn from circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction, see, e.g., City of Canton v. Harris, 489 U.S. at" } ]

[ { "docid": "16000239", "title": "", "text": "asserted various claims pursuant to 42 U.S.C. § 1983, which provides, in relevant part: Every person who, under color [of law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .... 42 U.S.C. § 1983. Defendants maintain, first, that they entitled to summary judgment with regard to CUNY because Menes has failed to establish that a policy or custom of CUNY caused the deprivation of his federal constitutional rights, as he did not present evidence that the municipal action was taken with “deliberate indifference” to its obvious or known unconstitutional consequences. See Board of County Comm’rs. v. Brown, 520 U.S. 397, 406-07, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citing Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “[A] municipality and its supervisory officials may not be held liable in a § 1983 action for the conduct of a lower-echelon employee solely on the basis of respondeat superior.” Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 122 (2d Cir.1991); Monell, 436 U.S. at 694, 98 S.Ct. 2018. In order to establish the liability of such defendants in an action under § 1983 for unconstitutional acts by such employees, a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79, 106 S.Ct. 1292, 1297-98, 89 L.Ed.2d 452 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985); Monell, 436 U.S. at 694, 98 S.Ct. 2018; Fiacco v. City of Rensselaer, 783 F.2d at 326, 328 (2d Cir.1986). In order to satisfy this requirement, Menes need not prove that CUNY had a formal rule or regulation that caused the constitutional deprivation. See" }, { "docid": "9556075", "title": "", "text": "policy. (Defs. Mem. Supp. Summ. J. at 12-13.) Plaintiff contends in response that the City acted with conscious disregard for and deliberate indifference to his right to be free of racial harassment, and thus may be liable under an inadequate training theory. (PI. Mem. Opp. Summ. J. at 13-14.) Defendants, citing the City’s anti-discrimination and harassment policy and complaint procedure, claim that plaintiffs inadequate training theory fails as a matter of law because plaintiff cannot prove that the City acted with “conscious disregard” or “deliberate indifference” to plaintiffs right to be free from racial discrimination and harassment. (Defs. Mem. Supp. Summ. J. at 14.) Section 1983 applies to municipalities and other local government units. Monell v. Department of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, “[a] municipality may not be held liable in an action under § 1983 for actions alleged to be unconstitutional by its employees below the policymaking level solely on the basis of respondeat superior.” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018). Nonetheless, a § 1983 claim may be brought against a municipality when a “policy or custom” of the municipality deprived the plaintiff of his constitutional rights. See Zahra, 48 F.3d at 680-81. To establish municipal liability, a plaintiff must show that an identified municipal policy or practice was the “moving force [behind] the constitutional violation.” Id. at 694. Furthermore, where, as here, there is a claim against an individual municipal employee in his official capacity, “there must be proof of such a custom or policy in order to permit recovery ... [because] such claims are tantamount to claims against the municipality itself.” Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993) (citing Hafer v. Melo, 502 U.S. 21, 30, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)). In cases in which a plaintiff does not claim that a municipality directly inflicted an injury, but nonetheless caused an employee to do so, “rigorous standards of culpability and causation must be applied to ensure that" }, { "docid": "16000240", "title": "", "text": "S.Ct. 2018, 56 L.Ed.2d 611 (1978). “[A] municipality and its supervisory officials may not be held liable in a § 1983 action for the conduct of a lower-echelon employee solely on the basis of respondeat superior.” Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 122 (2d Cir.1991); Monell, 436 U.S. at 694, 98 S.Ct. 2018. In order to establish the liability of such defendants in an action under § 1983 for unconstitutional acts by such employees, a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79, 106 S.Ct. 1292, 1297-98, 89 L.Ed.2d 452 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985); Monell, 436 U.S. at 694, 98 S.Ct. 2018; Fiacco v. City of Rensselaer, 783 F.2d at 326, 328 (2d Cir.1986). In order to satisfy this requirement, Menes need not prove that CUNY had a formal rule or regulation that caused the constitutional deprivation. See Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995); Villante v. Dep’t of Corrections, 786 F.2d 516, 519 (2d Cir.1986). Rather, he need only produce evidence that CUNY was aware of a pattern of unconstitutional conduct by its employee but failed to take any action. See Walker v. City of New York, 974 F.2d 293, 300 (2d Cir.1992). However, Menes has not produced any evidence of “deliberate indifference” on the part of CUNY. Moreover, a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy. See, e.g., City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989); Fiacco v. City of Rensselaer, 783 F.2d at 328 (2d Cir.1986). As no evidence has been adduced in this case suggesting that a custom or policy of CUNY caused a deprivation of Menes’s civil rights, the § 1983 claim will be dismissed with regard to CUNY. Menes also alleges that Defendants subjected him to" }, { "docid": "21547402", "title": "", "text": "B. The Directed Verdict in Favor of the County In contrast, we conclude that, though the court similarly stated that the preponderance of the evidence favored the County, a directed verdict in favor of the County on Powell’s claim under § 1983 was proper. We reach this conclusion because the record is devoid of evidence from which the jury could have found that Powell was injured as the result of a municipal custom or policy, and because we are unpersuaded that Powell was unfairly denied the opportunity to present such evidence. 1. Sufficiency of the Evidence on the § 1983 Claim It is well established that a municipality may not be held liable solely on the basis of respondeat superior. See Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). In order to establish the liability of a municipality in an action under § 1983 for unconstitutional acts by its employees, a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79, 106 S.Ct. 1292, 1297-98, 89 L.Ed.2d 452 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985); Monell v. Department of Social Services, 436 U.S. at 690, 694, 98 S.Ct. at 2035, 2037; Fiacco v. City of Rensselaer, 783 F.2d at 326; Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir.1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 685 (1987). This does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation. Villante v. Department of Corrections, 786 F.2d 516, 519 (2d Cir.1986). The inference that a policy existed may be drawn from circumstantial proof, such as evidence that the municipality customarily failed to train its employees and displayed a deliberate indifference to the constitutional rights of those within its borders, see, e.g., City of Canton v. Harris, - U.S. -, 109 S.Ct. 1197, 1206, 103 L.Ed.2d 412 (1989), or" }, { "docid": "12170016", "title": "", "text": "L.Ed.2d 791(1985)). . See Palmieri v. Lynch, 392 F.3d 73, 78 (2d Cir.2004). . See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.2004). . Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir.2007) (quoting Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.2002)). . Kotlyarsky v. New York Post, 195 Misc.2d 150, 757 N.Y.S.2d 703, 706 (2003) (citing Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259, 377 N.E.2d 713 (1978)) (other citations omitted). Accord Holmberg v. Armbrecht, 327 U.S. 392, 396-97, 66 S.Ct. 582, 90 L.Ed. 743 (1946) (explaining that a statute of limitations will be tolled if material facts are concealed). . Kotlyarsky, 757 N.Y.S.2d at 707 (citations omitted). . Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). . Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir.2000). Accord Monell, 436 U.S. at 691, 98 S.Ct. 2018. . Jeffes, 208 F.3d at 61 (quoting Board of County Comm’rs v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). . Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. Accord Brown, 520 U.S. at 402, 117 S.Ct. 1382; Pembaur v. City of Cincinnati, 475 U.S. 469, 479-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). . See Tuttle, 471 U.S. at 831, 105 S.Ct. 2427 (Brennan, J., concurring in part and concurring in the judgment) (\"To infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell .... ”). . See Monell, 436 U.S. at 690, 98 S.Ct. 2018. . See Pembaur, 475 U.S. at 480-81, 106 S.Ct. 1292. See also Walton v. Safir, 122 F.Supp.2d 466, 477 (S.D.N.Y.2001) (\"[T]he act of an official with final decision-making authority, if it wrongfully causes the plaintiff's constitutional injury, may be treated as the official act of the municipality ....”) (citing City of St. Louis v. Praprotnik, 485 U.S." }, { "docid": "16830731", "title": "", "text": "See, e.g., Malizia v. Westchester County Disk Attorney’s Office, No. 98-7043, 1998 WL 712424 at *2 (2d Cir. Oet.l, 1998) (unpublished) (false arrest and malicious prosecution claims were properly dismissed under Heck because plaintiffs “case did not terminate in his favor”); Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.1995) (dismissing false arrest, false imprisonment and malicious prosecution claims under Heck, because plaintiff “has not demonstrated that his conviction has been invalidated in any manner”); Channer v. Mitchell, 43 F.3d 786, 787 (2d Cir.1994) (claims that defendant police officers committed perjury and coerced witnesses to wrongfully identify plaintiff was properly dismissed under Heck because plaintiff “offered no proof that his conviction had been independently invalidated”). IV. THE CITY AND COMMISSIONER BRATTON SHOULD BE GRANTED SUMMARY JUDGMENT ON MCAL-LISTER’S MONELL CLAIM SINCE MCALLISTER HAS FAILED TO ESTABLISH THAT THEY MAINTAINED A POLICY OR CUSTOM OF UNCONSTITUTIONAL BEHAVIOR It is well established that a municipality may not be held liable under § 1983 for alleged unconstitutional actions by its employees below the policemaking level solely upon the basis of respondeat superior. E.g., Monell v. Department of Soc. Servs, of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.1998); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995); Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir.1991); Palmer v. City of Yonkers, 22 F.Supp.2d 283, 290 (S.D.N.Y. 1998); Smith v. Montefiore Med. Ctr., 22 F.Supp.2d 275, 282-83 (S.D.NY.1998); Brodeur v. City of New York, 96 Civ. 9421, 1998 WL 557599 at *8-9 (S.D.N.Y Sept.2, 1998); Covington v. City of New York, 94 Civ. 4234, 1998 WL 226183 at *3 (S.D.N.Y May 4, 1998); Carnegie v. Miller, 811 F.Supp. 907, 911 (S.D.N.Y.1993) (Wood, D.J.). Thus, in order to hold a municipality liable under § 1983 for the unconstitutional acts of its employees, the plaintiff must plead and prove that the violation of constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-83, 106 S.Ct." }, { "docid": "1494847", "title": "", "text": "the Town Defendants also argue that Plaintiffs have failed to plead a basis for municipal liability. The Court agrees. A municipality may not be held liable under Section 1983 for alleged unconstitutional actions committed by its employees solely on the basis of respondeat superior. Monell, 436 U.S. at 691, 98 S.Ct. 2018. Rather, “to hold a municipality liable in such an action, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (internal quotation marks and citation omitted). Although Plaintiffs attempted to plead the existence of such a policy by stating in the Complaint that “the defendant, TOWN, implemented or executed an official policy, statement, ordinance, regulation or decision through its officials” (Compl. ¶ 64), “[t]he mere assertion ... that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference,” Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir.1993). Such circumstantial evidence includes “evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction, or evidence that the municipality had notice of but repeatedly failed to make any meaningful investigation into charges that its agents were violating citizens’ constitutional rights.” DeCarlo v. Fry, 141 F.3d 56, 61-62 (2d Cir. 1998) (internal quotation marks and citation omitted). The Complaint here is de void of any allegations from which the existence of a municipal policy can be inferred. Accordingly, the claims against the Town are hereby DISMISSED. c. Against Gioia Defendants argue that the equal protection claims against Defendant Gioia must be dismissed because: (1) to the extent that he is being sued in his official capacity, the claim is duplicative of the claims against the Town; (2) to the extent that he is being sued in his individual capacity, he is entitled to absolute prosecutorial immunity;" }, { "docid": "10302130", "title": "", "text": "favor of New Rochelle on a second ground as well. While New Rochelle did not initially make a motion to dismiss as against it on Monell grounds, see Monell v. Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), it appeared from my review of the record that such a motion might well he. I raised the issue sua sponte at oral argument and directed the parties to submit letter briefs, which they did. I. incorporate these briefs into the record and proceed to grant summary judgment dismissing the complaint against New Rochelle on Monell grounds. It is well settled that a municipality may not be held liable for the actions of its officials and employees on a theory of respondeat superior, see Batista v. Rodriguez, 702 F.2d 393, 396 (2d Cir.1983), and that a municipality may be found liable under Section 1983 only where it acts pursuant to a municipal custom or policy. See Monell, 436 U.S. at 690-91, 98 S.Ct. 2018; Batista, 702 F.2d at 397. The gravamen of plaintiffs complaint is that her prosecution was unique and discriminatory. Judge Rice so found when she deemed the matter one of first impression. Clearly, Levy’s complaint alleges the antithesis of custom or policy. Therefore, no municipal liability lies under Monell. See e.g. Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995); Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34, 38 (2d Cir.1985). Plaintiff would have this Court deem Goodman, who is Pasqua’s boss and who authorized the summons, to be a policymaker. She urges that I not apply Monell on the ground that, in certain circumstances, a single decision by a municipal policymaker may subject the municipality to liability (citing Pembaur v. City of Cincinnati 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). However, Goodman is the furthest thing from a policymaker. He carries out policy made by others. He does so without an iota of discretion: City law requires him to interpret the language of the Code “literally.” He did that in this" }, { "docid": "18473015", "title": "", "text": "where — and only where — a deliberate choice to follow a course of action is made from among various alternatives” by city policymakers. City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Thus, an individual’s misconduct will not result in respondeat superior liability for his supervisors absent specific allegations that he acted pursuant to an official policy or custom. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). However, “[a] court may draw the inference of the existence of a policy or custom ‘when a plaintiff presents evidence that a municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.’ ” Caidor v. M & T Bank, No. 05-CV-297 (FSJ), 2006 WL 839547, at *9, 2006 U.S. Dist. LEXIS 22980, at *35-36 (N.D.N.Y. Mar. 27, 2006) (quoting Griffin-Nolan v. Providence Wash. Ins. Co., No. 04-CV-1453 (FJS), 2005 WL 1460424, at *3, 2005 U.S. Dist. LEXIS 12902, at *10 (N.D.N.Y. June 20, 2005) (quotation omitted)). But, “ ‘the mere assertion ... that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.’ ” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (quoting Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir.1993)). In the instant case, as the Court finds as a matter of law on summary judgment that no constitutional violation was committed against plaintiff by the individual defendants, see supra, no Monell claim can lie against the District or School Board pursuant to § 1983. See, e.g., Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir.2006) (“Because the district court properly found no underlying constitutional violation, its decision not to address the municipal defendants’ liability under Monell was entirely correct.”); accord Vippolis v. Haverstraw, 768 F.2d 40, 44 (2d Cir.1985) (“A plaintiff who seeks to hold a municipality liable in" }, { "docid": "16609206", "title": "", "text": "and investigation in turn. A municipality may not be held liable under § 1983 for the conduct of its lower-echelon employees solely on the basis of respondeat superior. Monell v. Department of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); Sorlucco v. New York City Police Dep% 971 F.2d 864, 870 (2d Cir.1992). In order to impose § 1983 liability upon a municipality, a plaintiff must demonstrate that a constitutional harm resulted from a municipal policy or custom. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36; Sorlucco, 971 F.2d at 870. A single incident alleged in a complaint, especially if it involved only actors below the policy-making level, generally does not suffice to show a municipal policy or custom. Ricciuti v. N.Y.C. Transit Auth, 941 F.2d 119, 123 (2d Cir.1991). However, where the discriminatory practices of municipal officials are so persistent and widespread as to imply the constructive acquiescence of senior policy-making officials, a custom or policy may sometimes be inferred. Sorlucco, 971 F.2d at 870-71. For example, a custom or policy of deliberate indifference to the constitutional rights of those within its jurisdiction may be inferred from evidence that the municipality had notice of widespread charges of police misconduct yet repeatedly failed to make any meaningful investigation. See Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995); Ricciuti, 941 F.2d at 123; Fiacco v. City of Rensselaer, 783 F.2d 319, 328-31 (2d Cir.1986). Alternatively, where the municipality, in the face of an objectively obvious need for more or better training or supervision, fails to take action, a custom or policy may be inferred. See Board of the County Comm’rs v. Brown, — U.S.-,-, 117 S.Ct. 1382, 1390, 137 L.Ed.2d 626 (1997); City of Canton v. Harris, 489 U.S. 378, 388-92, 109 S.Ct. 1197, 1204-07, 103 L.Ed.2d 412 (1989); Ricciuti, 941 F.2d at 123. If a custom or policy of deliberate indifference is established, the municipality may be held liable if its inaction was the “moving force” behind the injury alleged. Brown, — U.S. at-, 117 S.Ct. at 1388. With" }, { "docid": "17996637", "title": "", "text": "the elements of a retaliation claim under NYCHRL). 5. Claims of Employment Discrimination against a Municipality In Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities are “persons” subject to damages liability for violations of 42 U.S.C. § 1983 by municipal officials. A municipality may only be liable for constitutional claims under section 1983 if the alleged offending conduct was undertaken pursuant to “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipal] officersf,] ... [or] governmental ‘custom’ even though such a custom has not received formal approval through the ... [municipality’s] official decisionmaking channels.” Monell, 436 U.S. at 690, 98 S.Ct. 2018; Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir.2004). To hold a municipality liable, that liability cannot be premised on the mere fact that the municipality employed the offending official— meaning that liability cannot be based on a theory of respondeat superior. See City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); see also Banushi v. City of New York, 2010 WL 4065414, at *11 (E.D.N.Y.2010). Moreover, “if the police officer[s] [are] not liable to plaintiff for any constitutional violation, then the City cannot be liable on a Monell theory.” Thompson v. Tracy, 2008 WL 190449, at *1 (S.D.N.Y. Jan. 17, 2008) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986)). E. Hostile Work Environment Claim 1. Hostile work environment claims under Section 1988, Section 1981, and NYSHRL To establish a hostile work environment claim under federal and New York state law, Bermudez must show that her workplace was “permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quotation marks and citations omitted); Patterson v. County of Oneida, 375 F.3d 206, 227 (2d Cir.2004); see" }, { "docid": "20034692", "title": "", "text": "No. 03 CV 6477, 2006 WL 1699606, at *5 (S.D.N.Y. June 21, 2006) (denying motion for summary judgment on plaintiffs denial of a fair trial claim on the basis of discrepancies in the parties’ testimonies as to how the bag of drugs that led to plaintiffs arrest ended up on the ground next to plaintiff). vi. Municipal Liability As his final claim, Brandon asserts that the City of New York is liable for the individual Defendants’ alleged constitutional violations pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Municipalities may be sued directly under § 1983 for constitutional deprivations inflicted upon private individuals pursuant to governmental custom, policy, ordinance, regulation, or decision.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983) (citing Monell, 436 U.S. at 658, 98 S.Ct. 2018). A municipality is not liable for a § 1983 claim on the theory of respondeat superior but rather on the basis that its policies or customs “inflicted] the injury upon the plaintiff.” Id. “To hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Id.; see also Kahn v. Oppenheimer & Co., No. 08 Civ. 11368, 2009 WL 4333457, at *3 (S.D.N.Y. Dec. 1, 2009). A plaintiff may satisfy the “policy, custom or practice” requirement in one of four ways. See Moray v. City of Yonkers, 924 F.Supp. 8, 12 (S.D.N.Y.1996). The plaintiff may allege the existence of (1) a formal policy officially endorsed by the municipality (see Monell, 436 U.S. at 690, 98 S.Ct. 2018); (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question (see Bd. of County Comm’rs v. Brown, 520 U.S. 397, 404-06, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion); Walker v. City of" }, { "docid": "11520033", "title": "", "text": "that plaintiffs malicious prosecution against defendant Lemma survives summary judgment, the Court must determine whether the County can be held liable under Section 1983. The County defendants move to dismiss the Section 1983 claims against the County on the basis that plaintiff has failed to establish the existence of any municipal policy or custom that caused plaintiffs alleged civil rights violations. For the reasons that follow, the Court concludes that there is a genuine issue of fact as to the County’s alleged failure to train and/or supervise Det. Lemma that precludes summary judgment on the municipal liability claim. The Supreme Court has explained that a municipal entity may be held liable under Section 1983 where a plaintiff demonstrates that the constitutional violation complained of was caused by a municipal “policy or custom.” Monell v. Dep’t of Social Servs. of N.Y.C., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “The policy or custom need not be memorialized in a specific rule or regulation.” Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.1996) (citing Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 870 (2d Cir.1992)). Instead, constitutional violations by government officials that are “persistent and widespread” can be “so permanent and well settled as to constitute a custom or usage with the force of law, and thereby generate municipal liability.” Sorlucco, 971 F.2d at 870-71 (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018) (internal quotation marks omitted). Moreover, a policy, custom, or practice of the entity may be inferred where “ ‘the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.’ ” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir.2004) (quoting Kern, 93 F.3d at 44). However, a municipal entity may be held liable only where the entity itself commits a wrong; “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. In his memorandum opposing summary judgment for the County, plaintiff rests his claim of municipal" }, { "docid": "20491282", "title": "", "text": "in their official capacity may be held liable under § 1981. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36,109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); see also Everson v. N.Y. City Transit Auth., No. 02-1121, 2007 WL 539159, at *33 (E.D.N.Y. Feb. 16, 2007). However, a § 1981 plaintiff suing a municipal entity must “prove that the violation was committed pursuant to a ‘policy, statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officer.’ ” Bazile v. N.Y. City Hous. Auth., No. 00-7215, 2002 WL 171690, at *16 (S.D.N.Y. Feb. 1, 2002) (quoting Monell v. Dep’t of Soc. Svcs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); see also Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) There is no § 1981 liability against a municipality on a theory of respondeat superior. Monell, 436 U.S. at 691, 98 S.Ct. 2018 (“a municipality cannot be held liable solely because it employs a tortfeasor”); Jett, 491 U.S. at 738, 109 S.Ct. 2702. Rather, it must be shown that the official action was taken pursuant to a policy of the municipality. “Absent a showing of a causal link between an official policy or custom and the plaintiffs’ injury, [Jett] prohibits a finding of liability against the [municipal entity].” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983). A plaintiff need not identify an articulated rule or regulation to demonstrate a municipal policy or custom. Patterson, 375 F.3d at 226. Proving that an employee with final decision-making authority engaged in racial discrimination will suffice to establish a municipal policy or custom. Everson, 2007 WL 539159, at *34 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). The question of whether a particular official has “final decision-making authority” is determined by state law. Id.; see also McMillian v. Monroe County, 520 U.S. 781, 786, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (“understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official’s functions under" }, { "docid": "6117382", "title": "", "text": "U.S.C. § 1983. Under § 1983, a municipal entity such as the Police Department may not be held liable for deprivations of rights caused by its employees on the basis of respondeat superior. Monell v. Dep’t of Social Seros, of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); Walker v. City of New York, 974 F.2d 293, 296 (2d Cir.1992), cert. denied, 507 U.S. 961, 113 S.Ct. 1387,122 L.Ed.2d 762 (1993); Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995); Sorlucco v. New York City Police Dep’t, 971 F.2d 864, 870 (2d Cir.1992). To prevail on a § 1983 claim against the Police Department, Wise must prove that a policy, custom, or practice of the Department caused her to be deprived of a constitutional right. Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38; Sorlucco, 971 F.2d at 870. Courts have recognized that a custom, practice, or policy violative of constitutional rights may be formal or informal. “So long as the discriminatory practices of city officials are persistent and widespread, they ‘could be so permanent and well settled as to constitute a custom or usage with the force of law,’ and thereby generate municipal liability.” Sorlucco, 971 F.2d at 870-71 (quoting Monell, 436 U.S. at 691, 98 S.Ct. at 2036 (internal quotations omitted)). For a subordinate city employee’s actions to give rise to § 1983 liability, the action “must be so manifest as to imply the constructive acquiescence of senior policy-making officials.” Sorlucco, 971 F.2d at 871. If allegations of liability are based on inadequate training or the failure to supervise, the plaintiff must demonstrate that “‘the failure to train amounts to deliberate indifference to the rights’ of those with whom the municipal employees will come into contact.” Walker, 974 F.2d at 297 (quoting City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204-D5,103 L.Ed.2d 412 (1989)). Wise does not claim that the Department had an official policy of sexual harassment. However, she has raised genuine issues of material fact with respect to her claim" }, { "docid": "20718638", "title": "", "text": "526 F.Supp.2d at 377-78 (same); Welch, 1997 WL 436382, at *5 (same); see also Martin v. Russell, 563 F.3d 683, 686 (8th Cir.2009) (same). Accordingly, even assuming arguendo that probable cause was lacking, Officer Vezzi is entitled to summary judgment on qualified immunity grounds because there was arguable probable cause to arrest. 3. Monell Claims Plaintiff also asserts § 1983 claims against Suffolk County for failing to adequately train police officers and for promulgating a “Mandatory Arrest Policy” in cases involving alleged violations of protective orders. As set forth below, the County is entitled to summary judgment on these claims. Under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipal entity may be held liable under § 1983 where a plaintiff demonstrates that the constitutional violation complained of was caused by a municipal “policy or custom.” Monell, 436 U.S. at 694-95, 98 S.Ct. 2018; Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir.2004) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733-36, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) and Monell, 436 U.S. at 692-94, 98 S.Ct. 2018). “The policy or custom need not be memorialized in a specific rule or regulation.” Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.1996) (citing Sorlucco v. N.Y. City Police Dep’t, 971 F.2d 864, 870 (2d Cir.1992)). A policy, custom, or practice of the municipal entity may be inferred where “ ‘the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.’ ” Patterson, 375 F.3d at 226 (quoting Kern, 93 F.3d at 44). However, a municipal entity may only be held liable where the entity itself commits a wrong; “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. Here, it is not disputed that Suffolk County maintains a “Mandatory Arrest Policy” in situations involving an alleged violation of a protection order. {See Defs.’ Mem. of Law at 6-8.) However, because probable cause" }, { "docid": "16830732", "title": "", "text": "basis of respondeat superior. E.g., Monell v. Department of Soc. Servs, of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.1998); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995); Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir.1991); Palmer v. City of Yonkers, 22 F.Supp.2d 283, 290 (S.D.N.Y. 1998); Smith v. Montefiore Med. Ctr., 22 F.Supp.2d 275, 282-83 (S.D.NY.1998); Brodeur v. City of New York, 96 Civ. 9421, 1998 WL 557599 at *8-9 (S.D.N.Y Sept.2, 1998); Covington v. City of New York, 94 Civ. 4234, 1998 WL 226183 at *3 (S.D.N.Y May 4, 1998); Carnegie v. Miller, 811 F.Supp. 907, 911 (S.D.N.Y.1993) (Wood, D.J.). Thus, in order to hold a municipality liable under § 1983 for the unconstitutional acts of its employees, the plaintiff must plead and prove that the violation of constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-83, 106 S.Ct. 1292, 1297-300, 89 L.Ed.2d 452 (1986); Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983); Brodeur v. City of New York, 1998 WL 557599 at *9; Gonzalez v. City of New York, 97 Civ. 2246, 1998 WL 382055 at *2 (S.D.NY. July 9,1998); Covington v. City of New York, 1998 WL 226183 at *3; King v. Department of Correction, 95 Civ. 3057, 1998 WL 67669 at *3 (S.D.N.Y. Feb.18,1998); Muniz v. New York, 96 Civ. 5931, 1997 WL 576033 at *2 (S.D.N.Y. Sept.15, 1997); Palacios v. Correctional Officer John Doe, 95 Civ. 6855, 1997 WL 458816 at *1 (S.D.N.Y. Aug.12, 1997); Woo v. City of New York, 93 Civ. 7007, 1996 WL 457337 at *4 (S.D.N.Y. Aug.14, 1996) (Peck, M.J.); Covington v. City of New York, 916 F.Supp. 282, 288 (S.D.N.Y.1996) (Peck, M.J.). Absent a showing of a causal link between an official policy or custom and the plaintiffs injury, Monell prohibits a finding of liability against the City. Monell v. Department of" }, { "docid": "20491281", "title": "", "text": "he was discriminated against because of his race in violation of 42 U.S.C. § 1981. Section 1981 provides, All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981(a). Section 1981 “outlaws discrimination with respect to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such as employment.” Patterson v. County of Oneida, N.Y., 375 F.3d 206, 224 (2d Cir.2004) (citing Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 68-69 (2d Cir.2000)). Hargett has brought his claim of discrimination under § 1981 against NYCTA, a municipal entity, and three individual employees — Grill, Ross and McIntosh. A municipal entity and its employees acting in their official capacity may be held liable under § 1981. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36,109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); see also Everson v. N.Y. City Transit Auth., No. 02-1121, 2007 WL 539159, at *33 (E.D.N.Y. Feb. 16, 2007). However, a § 1981 plaintiff suing a municipal entity must “prove that the violation was committed pursuant to a ‘policy, statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officer.’ ” Bazile v. N.Y. City Hous. Auth., No. 00-7215, 2002 WL 171690, at *16 (S.D.N.Y. Feb. 1, 2002) (quoting Monell v. Dep’t of Soc. Svcs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); see also Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) There is no § 1981 liability against a municipality on a theory of respondeat superior. Monell, 436 U.S. at 691, 98 S.Ct. 2018 (“a municipality cannot be held liable solely because it employs a tortfeasor”); Jett, 491 U.S. at 738, 109 S.Ct. 2702. Rather, it must be" }, { "docid": "16232814", "title": "", "text": "qualified immunity and we deny defendants’ motion for summary judgment on this issue. 2. Municipal Liability Under § 1983 Defendants argue that plaintiffs § 1983 claim against the Town must be dismissed because plaintiff cannot establish municipal liability. “A municipality may not be held liable in an action under § 1983 for actions alleged to be unconstitutional by its employees below the policymaking level solely on the basis of respondeat superior.” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (citing Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Nonetheless, a § 1983 claim may be brought against a municipality where a “policy or custom” of the municipality deprived the plaintiff of his constitutional rights. See id. at 690-91. To establish municipal liability, a plaintiff must show that an identified municipal policy or practice was the “moving force [behind] the constitutional violation.” Id. at 694. Furthermore, “there must be proof of such a custom or policy in order to permit recovery on claims against individual municipal employees in their official capacities, since such claims are tantamount to claims against the municipality itself.” Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993) (citing Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)). Where no municipal policy exists, “liability may nonetheless arise from ‘a course.of action tailored to a particular situation’ by a municipal decision maker, provided that ‘the decision maker possesses final authority to establish municipal policy with respect to the action ordered.’ ” Legal Aid Soc’y v. City of New York, 114 F.Supp.2d 204, 231 (S.D.N.Y.2000) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). As the Second Circuit recently explained: Where the contention is not that the actions complained of were taken pursuant to a local policy that was formally adopted or ratified but rather ... were taken or caused by an official whose actions represent official policy, the court must determine whether that official had final policymaking authority in the particular area" }, { "docid": "11520034", "title": "", "text": "Cir.1996) (citing Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 870 (2d Cir.1992)). Instead, constitutional violations by government officials that are “persistent and widespread” can be “so permanent and well settled as to constitute a custom or usage with the force of law, and thereby generate municipal liability.” Sorlucco, 971 F.2d at 870-71 (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018) (internal quotation marks omitted). Moreover, a policy, custom, or practice of the entity may be inferred where “ ‘the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.’ ” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir.2004) (quoting Kern, 93 F.3d at 44). However, a municipal entity may be held liable only where the entity itself commits a wrong; “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. In his memorandum opposing summary judgment for the County, plaintiff rests his claim of municipal liability on a theory of failure to train and supervise. “The failure to train or supervise [municipal] employees may constitute an official policy or custom if the failure amounts to ‘deliberate indifference’ to the rights of those with whom the [municipal] employees interact.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.2007) (quoting City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Deliberate indifference exists when the plaintiff establishes that (1) “a policymaker knows ‘to a moral certainty’ that [municipal] employees will confront a particular situation”; (2) “the situation either presents the employee with ‘a difficult choice of the sort that training or supervi sion will make less difficult,’ or ‘there is a history of employees mishandling the situation’ and (3) “the wrong choice by the [municipal] employee will frequently cause the deprivation of a citizen’s constitutional rights.” Id. at 195-96 (quoting Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir.1992)). Recently, the Supreme Court has reiterated that “[a] pattern of similar" } ]

[ { "docid": "22694015", "title": "", "text": "Whether the differences in quantum and type of independent proof are in principle or of expression is difficult to determine. Each case has its own facts admitted and its own corroborative evidence, which leads to patent individualization of the opinions. However, we think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. Thus, the independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense. Smith v. United States, post, p. 147. It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt. Turning to the instant case, it is clear that there was substantial independent evidence to establish directly the truthfulness- of petitioner’s admission that he paid the government employee money. But this direct corroborative evidence tending to prove the truthfulness of petitioner’s statements would not establish a corpus delicti of the offense charged. Rather it tends to establish only one element of the offense — payment of money. The Government therefore had to prove the other element of the corpus delicti — rendering of services by the government employee — entirely by independent evidence. This independent evidence of services and of facts within the admissions seems adequate to constitute corroboration of petitioner’s extrajudicial admissions and also establish the corpus delicti. The jury was free therefore to consider the admissions in connection with all the other evidence in the case and to decide whether the guilt of the petitioner had been established beyond a reasonable doubt. They found that it was and we feel that such finding is supported by substantial evidence. Third. Petitioner’s final complaint arises out of the fact that the conspirators were tried jointly." } ]

[ { "docid": "1026356", "title": "", "text": "then told the trial court that he felt “pains and sensations” and that it was difficult for him to stay focused. The court observed Battle rocking back and forth in his chair at times during the trial. Battle frequently indicated dissatisfaction with his lawyers: his lawyers were unwilling to present a defense based upon the implants Battle said he believed to be inside him. Battle also indicated his dissatisfaction with his lawyers’ intent to portray him as schizophrenic. Nonetheless, Battle’s lawyers proceeded with an insanity defense at trial based on Battle’s giving them “implicit authority early on in rambling conversation.” Neither Battle nor his lawyers told the trial court that Battle disagreed with the presentation of an insanity defense. Over the objection of his lawyers, Battle testified as the first defense witness at the guilt phase of trial. He confessed to the murder of Officer Washington and acknowledged that he knew it was wrong to kill another human being. Battle also told the jury about his belief in the implants. The jury found him guilty. During the penalty phase of trial, the court excused two jurors for inappropriate behavior and replaced them — before penalty phase deliberations — with two alternate jurors who had been present during the presentation of evidence at both the guilt and penalty phases. Battle also testified at the penalty phase, where he told the jury about Officer Washington, “The guy, you know, he acted like a dog. You know, he talked to you like a dog and, you know, he died like a dog.” The jury recommended the death penalty, and the court sentenced Battle accordingly. Upon receiving his death sentence, Battle responded, “Could I just do away with the appeals and everything at this moment?” IV. The Appeals Battle did appeal, however, raising thirteen separate issues on the direct appeal. We affirmed his conviction and sentence. United States v. Battle, 173 F.3d 1343, 1345 (11th Cir.1999). He later, in the district court under 28 U.S.C. § 2255, sought collateral review of the legality of his conviction and sentence. After reviewing the evidence adduced at" }, { "docid": "1391927", "title": "", "text": "signed a paragraph, handwritten by Agent Battle, which stated: I, Ronnie Howard, have requested through my federal probation officer, Mr. Haywood Polk, to be interviewed by the F.B.I. about my involvement in criminal activities. I do not want the lawyer present who is representing me on Asheville armed robbery charges and understand that the F.B.I. agents will ask me no questions about those charges. Signed Ronnie Howard. (App. at 867.) . As previously discussed at n. 2, supra, in Howard's direct appeal of his conviction for the murder of Mary Duncan, Howard claimed that his waiver of his right to counsel during his meeting with Polk was ineffective because Polk violated his Fifth Amendment right against self-incrimination when he questioned Howard at the Buncombe County Jail on October 3, 1985. The South Carolina Supreme Court rejected Howard’s claim, concluding that Polk did not “interrogate” Howard during his visit to the jail. While Howard steadfastly challenged the admissibility of the confessions to Agent Battle and Lieutenant Hitchins throughout his trial for the murder of Le and on direct appeal on various grounds, he did not argue that the confessions were “tainted fruit” directly resulting from Polk’s “custodial interrogation” until his state habeas proceeding. Therefore, Howard’s Edwards claim is arguably procedurally defaulted by virtue of his failure to raise it on direct appeal. The State, however, has waived the procedural default issue by failing to argue it before this Court. See United States ex rel. Bonner v. DeRobertis, 798 F.2d 1062, 1066 (7th Cir.1986). . Although Howard argues that the district court implicitly found that Polk initiated the meeting with him, we conclude that neither the magistrate judge nor the district court made a specific finding on that issue. It appears that both assumed, without deciding, that Polk initiated the meeting, but then rejected Howard’s claim by finding that the meeting did not constitute a \"police-initiated custodial interrogation.” . The dissent inexplicably criticizes the majority for failing to focus upon whether Howard’s confessions to Agent Battle and Lieutenant Hitchins were made in violation of ’Edwards. See post at 425. The dissent, however," }, { "docid": "4493208", "title": "", "text": "IP address from which Detective Odier downloaded the images charged in Count 1. Furthermore, the evidence showed that Eads used the computer for posting personal ads on Craiglist with [email protected] email address. At trial, two women who responded to these ads identified Eads as the individual with whom they met, and one woman testified that he showed her pictures of his family on the living room computer in question. All of the facts above lead us to conclude that the evidence of Eads’s guilt was overwhelming and the court’s admission of the images did not change the outcome of the trial. Therefore, Eads’s challenge to his convictions on Counts 1 and 2 must fail. C. Conviction for Witness Tampering Was Supported by the Evidence Eads also argues that the government failed to present sufficient evidence to show that he tried to persuade his wife to commit perjury. When considering a challenge to the sufficiency of the evidence at trial, a defendant faces an uphill battle on appeal because we must draw “all reasonable inferences in the prosecution’s favor” and affirm “if any rational jury could have found the elements of the crime beyond a reasonable doubt.” United States v. Wortman, 488 F.3d 752, 754 (7th Cir.2007). To convict Eads of witness tampering under 18 U.S.C. § 1512(b), the government had to prove that: (1) Rachel was a witness or prospective witness; (2) Eads attempted to persuade Rachel to provide false testimony, and (3) Eads acted knowingly and with intent to influence Rachel’s testimony. United States v. Holt, 460 F.3d 934, 938 (7th Cir.2006) (citing United States v. LaShay, 417 F.3d 715, 718 (7th Cir.2005)). The evidence on this charge— solely from Eads’s jailhouse conversations with Rachel—is not overwhelming, but it is not so thin that the jury was obliged to acquit Eads of this charge. See Wortman, 488 F.3d at 754 (“We do not reverse a conviction if a reasonable jury could have acquitted a defendant, we only reverse if the jury was obliged to acquit the defendant.”) (emphasis added). To prove this charge at trial, the jury heard eight," }, { "docid": "216027", "title": "", "text": "FLAUM, Chief Judge. After a jury trial, Stanley Algee was convicted of conspiracy to distribute and to possess with intent to distribute crack cocaine, conspiracy to possess with intent to distribute marijuana, possession of a firearm by a felon, and use of a firearm during a drug-trafficking offense, and was sentenced to a total of 300 months’ imprisonment. Algee now challenges his convictions and sentences, arguing among other things that his Sixth Amendment rights were violated when the district court disqualified his attorney of choice. We affirm. I. BackgRound In December 1996 Algee was arrested after he broke into a residence in Grand Tower, Illinois. He was later charged in an Illinois circuit court with armed violence, home invasion, armed robbery, aggravated battery, and unlawful possession of a weapon. Attorney Paul Christenson entered his appearance for both Algee and co-defendant Brent Battles. Following his arrest Battles gave a taped statement implicating Algee, himself, and a third individual, Marvin Gates, in the Grand Tower incident. After Gates was arrested, Christenson entered an appearance on his behalf and moved to withdraw as counsel for Battles. The state, meanwhile, moved to disqualify Christen-son from representing Algee and Gates, asserting that he had a conflict of interest due to his prior representation of Battles. The trial court granted the state’s motion. Algee and Battles were convicted following a jury trial and a bench trial, respectively. Gates was acquitted. On appeal, however, the Appellate Court of Illinois reversed Algee’s and Battles’s convictions, holding that the state had violated Illi nois’s speedy-trial statute. People v. Battles, 311 Ill.App.3d 991, 244 Ill.Dec. 109, 724 N.E.2d 997 (2000). After their state convictions were reversed, Algee and Battles were indicted in federal district court on charges relating to the Grand Tower incident. Algee was specifically charged with unlawful possession of a firearm by a felon and using or carrying a firearm during and in relation to a drug-trafficking offense. A superseding indictment was later returned, adding the drug-distribution charges. After Algee retained Christenson to represent him in the federal case, the government moved for disqualification, claiming that Christenson had" }, { "docid": "216028", "title": "", "text": "and moved to withdraw as counsel for Battles. The state, meanwhile, moved to disqualify Christen-son from representing Algee and Gates, asserting that he had a conflict of interest due to his prior representation of Battles. The trial court granted the state’s motion. Algee and Battles were convicted following a jury trial and a bench trial, respectively. Gates was acquitted. On appeal, however, the Appellate Court of Illinois reversed Algee’s and Battles’s convictions, holding that the state had violated Illi nois’s speedy-trial statute. People v. Battles, 311 Ill.App.3d 991, 244 Ill.Dec. 109, 724 N.E.2d 997 (2000). After their state convictions were reversed, Algee and Battles were indicted in federal district court on charges relating to the Grand Tower incident. Algee was specifically charged with unlawful possession of a firearm by a felon and using or carrying a firearm during and in relation to a drug-trafficking offense. A superseding indictment was later returned, adding the drug-distribution charges. After Algee retained Christenson to represent him in the federal case, the government moved for disqualification, claiming that Christenson had an unwaivable conflict of interest because of his prior representation of Battles and Gates and because Christenson had testified as a defense witness during Algee’s state-court trial. In support of its motion, the government asserted that Gates had given a statement implicating Algee in the Grand Tower offenses and was expected to testify against him. The government also pointed to the taped statement given earlier by Battles. After a magistrate judge denied the motion, the government moved for reconsideration, raising new allegations that Chris-tenson had received cocaine from Algee in exchange for legal services. The magistrate judge then vacated his earlier ruling and referred the matter to the district judge. The same day, co-defendant Battles filed his own motion to disqualify Christenson, asserting that during the state-court proceedings “a direct conflict of interest arose between Mr. Christenson’s representation of Mr. Battles and his representation of either Mr. Algee or Mr. Gates.” Battles indicated in his motion that he was unwilling to waive the conflict. A hearing was held on the two motions, during which the" }, { "docid": "13324579", "title": "", "text": "part in the crime or to plead the Fifth Amendment right against self-incrimination — neither of which trial counsel believed would help Battle’s defense. As to Rowan, who was Battle’s co-defendant in the murder trial, Battle’s trial counsel testified at the Rule 27.26 hearing that he decided not to call him to the stand since he expected Rowan to either deny any part in the crime or plead the Fifth Amendment. Trial counsel testified at the eviden-tiary hearing that his decision not to call either Preston or Rowan to testify was a matter of trial strategy. This is consistent with Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, in which the Supreme Court ruled strategic decisions “made after thorough investigation of law and facts ... are virtually unchallengeable,” even if that decision later proves unwise. See Novak v. Purkett, 4 F.3d 625, 628 (8th Cir.1993) (failure to call witness to testify because he had a prior conviction and because of trial counsel’s assessment of his witness’ emotional state was not deficient performance); Sanders v. State, 738 S.W.2d 856, 860 (Mo. banc 1987) (decision not to call co-defendant to testify was reasonable and “not clearly beyond the bounds of prevailing professional norms”). Choosing not to call Preston and Rowan was a reasonable decision at the time and did not amount to ineffective assistance. The state trial court’s ruling in the 27.26 hearing so found and this was affirmed. See State v. Battle, 661 S.W.2d at 495; Battle v. State, 745 S.W.2d at 735. These findings are not shown to be unsound. In addition, even if we concluded that Battle’s counsel’s decision not to call Preston and Rowan to testify was deficient, we would still reject Battle’s ineffective-assistance claim because he failed to demonstrate prejudice resulting from the attorney’s decision. Battle’s argument is that had trial counsel provided effective assistance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Battle has not met this burden. The record is replete with evidence that Battle was involved in the crime. Besides Battle’s confessions on" }, { "docid": "13324603", "title": "", "text": "though the jury found torture and depravity of mind, the jury did not articulate the specific findings it considered “torture.” In affirming Battle’s conviction, the Missouri Supreme Court found “torture” because the victim had “substantial time- to contemplate her fate.” Battle, 661 S.W.2d at 494. Even if a jury does not make specific findings that the murder involved torture, a finding by the state court of evidence that the victim had a substantial period of time before death to anticipate and reflect on it is a proper limiting construction of the aggravating circumstance instruction. Mathenia v. Delo, 975 F.2d 444, 450 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1609, 123 L.Ed.2d 170 (1993). For the foregoing reasons, we believe no instructional error of constitutional dimension existed in this ease. m. Battle next argues that the district court erred in denying habeas relief on his claim that the state trial court allowed into evidence a confession obtained involuntarily in violation of due process and his Fifth Amendment privilege against self-incrimination. Battle alleges that the district court erred in concluding that his inculpatory statements were made following- a knowing and intelligent waiver, and that the statements were voluntary. Battle argues he was a “frightened boy,” unaccustomed to police interrogation, who “cracked under pressure,” and made the inculpatory statements-. The district court found evidence that ten days after the murder the police went to Battle’s home when he was not there. The police had information that Elroy Preston may have been involved in the crime and wanted to question Battle about Preston’s alibi that he had been drinking with Battle and Tracy Rowan the night of the crime. Battle agreed to accompany the officers to the police headquarters where they questioned him about Preston’s alibi. At this time, Battle was not a suspect in the murder. However, during the course of the questioning, the officers observed that Battle was “unduly nervous and agitated.” An officer in the interrogation room then noticed that the tread on Battle’s shoe resembled the distinctive tread of a shoe print found at the scene of the" }, { "docid": "12120464", "title": "", "text": "PER CURIAM: The district court denied the appellant’s petition for writ of habeas corpus, based on the decision of the U.S. Parole Commission revoking his special parole and resentenc-ing him accordingly. We find no error, and AFFIRM. Appellant Battle was convicted of distributing heroin, for which he was sentenced in November, 1975 to a prison term with a three-year special parole term. He was released from prison and completed his regular parole, but during the special parole term, he was charged and convicted of cocaine possession with intent to distribute. He was convicted of this offense and in January, 1985 was sentenced to serve four years. In May, 1985, he received a combined revocation hearing on his first special parole term and the initial parole hearing on the 1985 sentence. The Parole Commission revoked Battle’s special parole, denying him credit for the time spent in that status. The unexpired portion of his original sentence was ordered to commence upon a release from the 1985 cocaine conviction Battle was to be continued to the expiration of the new sentence and was given a presumptive parole on the violator term of July 28, 1988. Appeal to the National Appeals Board was unsuccessful, as was Battle’s effort to contest this sentence before the magistrate and district court. Battle first contends that the Parole Commission does not have legal authority to supervise and revoke a special parole mandated by 21 U.S.C. § 841(c). Citing observations from several court opinions, he argues that only the district court has that authority. In United States v. Hernandez, 750 F.2d 1256, 1260 (5th Cir.1985), this court commented that “there is no reason why [the district court’s] power [to order an appropriate sanction] does not also extend to sentencing a parole violator under § 841(b)(1)(A).” See also United States v. Butler, 763 F.2d 11, 15 (1st Cir. 1985); United States v. Glasser, 750 F.2d 1197, 1207 (3rd Cir.1984), cert. denied, 471 U.S. 1018, 105 S.Ct. 2148, 85 L.Ed.2d 504 (1985) (regarding the analogous special parole term provided in 21 U.S.C. § 960(c)). None of these opinions, however, suggests that" }, { "docid": "1364820", "title": "", "text": "Nevertheless, given the substantial evidence which was properly before the jury, we cannot say that the prosecutor’s remarks prejudicially affected the defendant’s substantial rights. As a second general issue, defendant argues that, aside from his admissions, the government failed to' adduce any proof of the crime and thus, did not establish defendant’s guilt beyond a reasonable doubt. A defendant’s extrajudicial admissions of essential facts or elements of a crime are of the same character as confessions and thus, to lead to a conviction, must be corroborated by “substantial independent evidence.” Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954); Todd, 657 F.2d at 216 (8th Cir.1981). The government is required to present evidence which supports the essential facts admitted by a defendant, and which is sufficient to justify an inference that a defendant’s statements are true. Id. In this case, the guns were in a house which the defendant frequently visited and in a bedroom in which the defendant had been sleeping. These facts are sufficient to justify the inference that the defendant was telling the truth when he told officers that the guns were his. As a third general issue, the defendant argues that the trial court committed prejudicial error by reading the language of the indictment to the jury, and by informing the jury that he had been convicted previously for a drug offense and thus was a felon under Missouri law. The indictment contained the fact that the defendant had been convicted previously, a necessary element of the crime, and also revealed that the prior conviction had been for possession of drugs. During trial defendant offered to stipulate as to the prior conviction and the government had accepted the offer. The defendant argues that the trial court erred by bringing the nature of the defendant’s previous conviction to the jury’s attention. Once informed of the stipulation of counsel, the trial court should have read the indictment to the jury without reference to the nature of his previous conviction. United States v. Turner, 565 F.2d 539, 541 (8th Cir.1977). However, since" }, { "docid": "11751573", "title": "", "text": "to be calm, cordial, and friendly. Mr. Battle denied recent usage of alcohol, narcotics, or prescription drugs, and indicated that he had not sustained any recent head injuries nor other physical injuries. Police began interviewing Mr. Battle at approximately 4:00 p.m. and the confession was completed shortly before 6:00 p.m. Agents Miran-dized Battle, assessed his mental state, obtained a waiver, and quickly confronted the suspect with the facts against him. The court finds that the above facts reveal nothing but the appropriate police behavior. Battle claims, however, that during his interrogation, he overheard Ms. McCoy crying and a voice telling her that SRS was coming to take her children. As mentioned above, both Ms. McCoy and the officers in contact with her testified that the SRS was not mentioned at the Task Force Office. Based on the weight of the testimony, the court finds that officers did not threaten Ms. McCoy and Mr. Battle thus could not have overheard such a statement. D. Search Warrant for 2343 N. Lorraine, issued March 29, 2000, is Valid As noted previously, the search warrant is valid on its face. A neutral and detached magistrate issued the warrant which particularly identified both the place to be searched and the things to be seized. The only question is whether the search warrant is based on probable cause established through the affidavit of Agent Nevil. The affidavit presents the facts leading up to Mr. Battle’s interrogation and the contents of Mr. Battle’s confession. Battle’s confession indicated that he committed the robbery, he shot the store clerk, he returned to 2343 N. Lorraine depositing a shotgun in a trash can along the way, and he stashed the clothing worn and money obtained during the robbery at 2343 N. Lorraine. It is clear to the court that the affidavit contained sufficient facts to enable the magistrate to make an independent evaluation finding probable cause to believe that seizable evidence would be found at 2343 N. Lorraine. The warrant is thus valid. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (warrant will" }, { "docid": "12658861", "title": "", "text": "LAY, Chief Judge. Russell Dereck Battle appeals from his judgment of conviction for possession of heroin with intent to distribute. Battle was convicted of violating 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (possession with intent to distribute heroin) and sentenced to ten years imprisonment to be followed by a special parole term of three years. Battle challenges the admissibility of certain evidence, and the sufficiency of the evidence to support his conviction. In addition, Battle maintains the government improperly exercised its peremptory challenges in selection of the jury. At this time we need only address the peremptory challenges exercised by the government. Battle, who is black, maintains that the government unconstitutionally used its peremptory challenges to substantially reduce the number of blacks available to sit on the jury. To establish a constitutional violation, a defendant must first establish a prima facie case of purposeful discrimination in selection of the jury panel. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). “[A] defendant may establish a prima facie case of purposeful discrimination * * * solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Id, at 96. To establish a prima facie case, the defendant must show that he is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to exclude members of his race from the jury. He then “must show that these facts and any other relevant circumstances raise an inference that the prosecutor used [his peremptory] practice to exclude the veniremen from the petit jury on account of their race.” Id. In determining whether a defendant has established the requisite showing of purposeful discrimination, the trial court should consider all relevant circumstances including, but not limited to, a pattern of strikes against black jurors, as well as the prosecutor’s questions and statements during voir dire. Id. at 96-97. If the defendant establishes a prima facie case of purposeful discrimination, the burden then shifts to the prosecution to articulate a neutral explanation for challenging the black veniremen. While the prosecutor’s explanation need not rise to the" }, { "docid": "3257731", "title": "", "text": "would have to be found guilty of Count 11 and sentenced to a term of 30 years imprisonment. We disagree that the antagonistic defenses of Summerlin and Behren’s were prejudicial. As stated above, the record is replete with evidence — independent of what occurred during the gun battle with federal authorities — to support a jury’s finding that Summerlin used or carried an automatic weapon during or in relation to a drug trafficking offense. Therefore, Sum-merlin’s theory of defense related to the gun battle was not mutually exclusive to Behren’s, nor would acceptance by the jury of Summerlin’s theory of defense have necessarily established Summerlin’s innocence and Behren’s guilt. Consequently, we conclude that Summerlin has failed to make a sufficient showing of prejudice. X. Admission of Impeachment Evidence Behrens contends that the district court committed reversible error by allowing the government to question Marshal Hammon at trial about the statements Scott Spears made to Hammon regarding the events of July 27, 1990. We review a district court's decision to admit or exclude evidence under an abuse of discretion standard. United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988). When the government called Scott Spears as a trial witness, he testified that Behrens did not possess a gun — or at least he could not recall whether Behrens possessed a gun — during the altercation with federal authorities on July 27, 1990. The trial record indicates that this was not the testimony the prosecutor expected and that Scott Spears had previously told the Grand Jury that Behrens had fired on federal agents with an automatic weapon. As its final witness, the government called Marshal Tom Hammon. When the prosecutor began to question Hammon about a conversation he had with Scott Spears, Behrens' counsel objected on grounds that Hammon’s testimony was hearsay. The prosecutor advised the court that the questions were intended to impeach Scott Spears’ trial testimony. Beh-rens’ counsel then responded that before the government could use Hammon’s testimony to impeach the testimony, Scott Spears should be given the opportunity to explain or deny his prior statement. The district court" }, { "docid": "21615798", "title": "", "text": "L.Ed.2d 718 (1997). A. Section 3E1.1 of the U.S.S.G. provides for reductions in the offense level for acceptance of responsibility. The district court found that Battle qualified for a two-level reduction, pursuant to U.S.S.G. § 3El.l(a), because he admitted robbing the convenience store and shooting Mr. Lee. The probation officer who prepared the presentence report recommended against a reduction for acceptance of responsibility. The Government also opposed any reduction for acceptance of responsibility because Battle did not provide complete information concerning his involvement in the offense. The record shows that Battle told the FBI that he shot Mr. Lee in self-defense. Battle said that Mr. Lee advanced toward him and appeared to be reaching for a weapon. The Government presented witnesses at the sentencing hearing who testified that Mr. Lee obeyed Battle’s commands and did not advance towards him or make any threatening gestures. Thus, whether Battle provided complete information to the Government entitling him to a third-level reduction for acceptance of responsibility pursuant to § 3El.l(b)(l) was a sharply disputed issue of fact at the sentencing hearing. Under the law of this circuit, a factual dispute as to whether a particular guideline applies does not rise to the level of plain error. United States v. Merritt, 1998 WL 3471, at *2 (10th Cir. Jan.6, 1998) (unpublished); United States v. Jones, 80 F.3d 436, 438 (10th Cir.1996); United States v. Covarrubias-Garcia, 1994 WL 38647, at *2-3 (10th Cir. Feb.10, 1994) (unpublished); United States v. Easter, 981 F.2d 1549, 1556 (10th Cir.1992); see also United States v. Deninno, 29 F.3d 572, 580 (10th Cir.1994) (noting that failure to object to a presentence report’s statement of fact constitutes a waiver of the issue). Therefore, we do not reach Battle’s contention that he was entitled to an additional reduction for acceptance of responsibility for providing complete information to the Government. B. Battle also contends that the district court plainly erred in calculating his guideline range. His argument appears to be based on the assumption that his sentence is controlled by 18 U.S.C. § 924(c). As such, he argues that his two violations should" }, { "docid": "21615797", "title": "", "text": "(j).” Id. The district court, therefore, did not violate the Double Jeopardy Clause in the instant case in imposing multiple punishments. V Battle further contends that the district court erred in applying the Sentencing Guidelines. He argues that he should have received a third-level reduction of his base offense level for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(b)(l). He also contends that the district court erred in grouping his conviction for violation of the Hobbs Act with his conviction for using a firearm and causing the death of a person in the commission of a violent crime. These sentencing issues are raised for the first time in this appeal. Battle did not raise these objections in the district court. We review his contentions for plain error. United States v. Lindsay, 184 F.3d 1138, 1142 (10th Cir.1999). Under the plain error standard, Battle must show clear or obvious error that affected his substantial rights and seriously affected the integrity of the judicial proceedings. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). A. Section 3E1.1 of the U.S.S.G. provides for reductions in the offense level for acceptance of responsibility. The district court found that Battle qualified for a two-level reduction, pursuant to U.S.S.G. § 3El.l(a), because he admitted robbing the convenience store and shooting Mr. Lee. The probation officer who prepared the presentence report recommended against a reduction for acceptance of responsibility. The Government also opposed any reduction for acceptance of responsibility because Battle did not provide complete information concerning his involvement in the offense. The record shows that Battle told the FBI that he shot Mr. Lee in self-defense. Battle said that Mr. Lee advanced toward him and appeared to be reaching for a weapon. The Government presented witnesses at the sentencing hearing who testified that Mr. Lee obeyed Battle’s commands and did not advance towards him or make any threatening gestures. Thus, whether Battle provided complete information to the Government entitling him to a third-level reduction for acceptance of responsibility pursuant to § 3El.l(b)(l) was a sharply disputed issue of fact at" }, { "docid": "16431875", "title": "", "text": "defendant lied during his testimony. See id. Here, Harris testified and contradicted much of Fischer’s testimony. Harris denied saying that the substance in his pocket was cocaine, denied ever selling drugs in the area, denied having any money seized from his person, denied knowing that Pas- chai had any drugs on her person, and denied both making the one-hundred trips to Chicago and telling Fischer that he made those trips. Harris’s testimony conflicted with Fischer’s. This conflict presented a credibility issue for the trial court. The court could have concluded that one witness was mistaken or had a faulty memory. But the record also supported its conclusion that one of the witnesses-Harris-was lying. From this record, there is no clear error. We encourage district courts to continue trying to achieve the proper balance between sentencing policy and the right to testify. While policy supports enhancing sentences for obstructing justice, we caution against upsetting the balance by routinely finding obstruction when a defendant loses a swearing battle with one government witness. III. CONCLUSION We affirm. . The Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa. . Trial testimony revealed that Dorman is a common cutting agent for heroin. . Harris waived his Miranda rights before Fischer interviewed him. .As noted above, the substance the officers found on Harris was heroin. The district court found that this mistake created a reasonable inference that Harris knew cocaine was present in the apartment." }, { "docid": "13324562", "title": "", "text": "JOHN R. GIBSON, Senior Circuit Judge. Thomas Henry Battle, convicted of capital murder and sentenced to death, appeals from the district court’s order denying his petition for habeas corpus. Battle brings various claims of ineffective assistance of counsel at the guilt and penalty phases of his state trial, instructional error, improper admission of a confession, and unconstitutional jury selection. We affirm the judgment of the district court. Battle was convicted of capital murder and sentenced to death in the Circuit Court for the City of St. Louis, Missouri, in 1981. The Supreme Court of Missouri affirmed Battle’s conviction and sentence. State v. Battle, 661 S.W.2d 487 (Mo. banc 1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984). In 1984, Battle filed a pro se motion for post-conviction relief under Missouri Supreme Court Rule 27.26. The court appointed counsel to represent him, held an eviden-tiary hearing, and denied his Rule 27.26 motion. The Missouri Court of Appeals affirmed the denial of Battle’s Rule 27.26 motion. Battle v. State, 745 S.W.2d 730 (Mo.Ct.App.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988). Battle then filed a pro se petition for writ of habeas corpus in the United States District Court for the Western District of Missouri. The Western District transferred the case sua sponte to the Eastern District of Missouri, where the district court, without appointing counsel, denied Battle federal habeas relief. On Battle’s appeal of the denial of his habeas petition, a panel of this court reversed and remanded the case to the district court with directions to appoint him counsel. Battle v. Armontrout, 902 F.2d 701 (8th Cir.1990). In 1990, the district court appointed counsel, and Battle filed an amended habeas petition. The district court denied Battle’s motion for federal habeas relief and refused to issue a certificate of probable cause so he could press his appeal of that court’s decision. A panel of this court granted a certificate of probable cause on April 8, 1993. Battle’s execution has been stayed until the conclusion of these proceedings. Battle appeals from the district court’s" }, { "docid": "13324580", "title": "", "text": "State, 738 S.W.2d 856, 860 (Mo. banc 1987) (decision not to call co-defendant to testify was reasonable and “not clearly beyond the bounds of prevailing professional norms”). Choosing not to call Preston and Rowan was a reasonable decision at the time and did not amount to ineffective assistance. The state trial court’s ruling in the 27.26 hearing so found and this was affirmed. See State v. Battle, 661 S.W.2d at 495; Battle v. State, 745 S.W.2d at 735. These findings are not shown to be unsound. In addition, even if we concluded that Battle’s counsel’s decision not to call Preston and Rowan to testify was deficient, we would still reject Battle’s ineffective-assistance claim because he failed to demonstrate prejudice resulting from the attorney’s decision. Battle’s argument is that had trial counsel provided effective assistance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Battle has not met this burden. The record is replete with evidence that Battle was involved in the crime. Besides Battle’s confessions on both the audiotape and videotape, evidence was presented at trial that his handprint matched that found on the sink under the window at the victim’s apartment and that his shoe had the same distinctive tread as a shoe print lifted from the murder scene. See State v. Battle, 661 S.W.2d at 490. This is powerful physical and circumstantial evidence that Battle committed the murder. We are further satisfied that Battle’s arguments, although directed at outcome determination, are also inadequate on the record before us to demonstrate that the proceeding was fundamentally unfair or unreliable. Fretwell, — U.S. at-, 113 S.Ct. at 842-43. C. Battle next contends that he was denied effective assistance of counsel because his attorney did not interview or call witnesses to attack the State’s serology expert and failed to obtain a saliva sample from Preston. The district court held all of the claims as to the serology issues, except the claim regarding Preston’s saliva sample, were procedurally barred because Battle failed to raise them to the state court. The district court also" }, { "docid": "1026357", "title": "", "text": "During the penalty phase of trial, the court excused two jurors for inappropriate behavior and replaced them — before penalty phase deliberations — with two alternate jurors who had been present during the presentation of evidence at both the guilt and penalty phases. Battle also testified at the penalty phase, where he told the jury about Officer Washington, “The guy, you know, he acted like a dog. You know, he talked to you like a dog and, you know, he died like a dog.” The jury recommended the death penalty, and the court sentenced Battle accordingly. Upon receiving his death sentence, Battle responded, “Could I just do away with the appeals and everything at this moment?” IV. The Appeals Battle did appeal, however, raising thirteen separate issues on the direct appeal. We affirmed his conviction and sentence. United States v. Battle, 173 F.3d 1343, 1345 (11th Cir.1999). He later, in the district court under 28 U.S.C. § 2255, sought collateral review of the legality of his conviction and sentence. After reviewing the evidence adduced at trial, hearing testimony at the motion hearing and argument from counsel, the district court denied relief. Discussion In his argument that the district court erred in declining to set aside his conviction and death sentence, Battle raises six issues: (1) Whether the district court erred in finding Battle competent to stand trial and in failing to hold another competency hearing at the beginning of trial; (2) Whether Battle’s Fifth and Sixth Amendment rights were violated by presentation of an insanity defense; (3)(a) Whether the indictment’s failure to include capital statutory aggravating factors provides Battle with grounds for relief, and (b) Whether the Federal Death Penalty Act is unconstitutional; (4) Whether the district court erred in dismissing two jurors and seating alternate jurors for penalty phase deliberations; (5) Whether the district court erred in declining to have Battle’s § 2255 motion randomly assigned to another judge; and (6) Whether the district court erred in limiting the scope of post-conviction discovery. I. The Competency Claims Battle argues that his due process rights were violated because the district" }, { "docid": "13324605", "title": "", "text": "murder. The district court found that the officer then halted the interview and advised Battle of his Miranda rights. Battle waived those rights, signed a written consent to be fingerprinted, and voluntarily surrendered his shoes to the officers. The district court found that approximately one hour after learning the positive matching of his fingerprints to the crime scene, Battle denied any involvement in the crime. Shortly thereafter, he agreed to make a tape-recorded statement. The officers gave Battle, who had an eighth-grade education and could read and write, a written Miranda warning form to sign. He read the warnings, initialed the form after each warning, and signed it. At the beginning of the taped statement, he was again advised of his constitutional rights and again waived them. In the taped statement, he admitted -he and Tracy Rowan broke into Birdie Johnson’s apartment, but said Rowan committed the murder. After the officer said he did not believe Battle, the appellant agreed to tell the truth and confessed to the murder. Shortly thereafter he agreed to make a statement on a videotape. The officers once again advised him of his constitutional rights and again he waived them. After repeating his confession on the videotape, he was arrested. He also made inculpatory statements while in his jail cell. The state trial court suppressed all statements Battle made before the audiotape statement and those made after the videotape confession, but admitted into evidence the audiotape and videotape. The district court found that the state trial court did not err in admitting the confessions on the audiotape and videotape bécause the officer’s testimony, the execution of the waiver form, the transcripts of both tapes, and Battle’s trial testimony “clearly show he was given multiple Miranda warnings and repeatedly waived them.” In determining whether a defendant confessed involuntarily, a reviewing court must examine the entire record to determine if the accused was coerced or his will was overborne. United States v. Wilson, 787 F.2d 376, 380-81 (8th Cir.), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986). The court must consider the totality" }, { "docid": "1391940", "title": "", "text": "signed by Howard, tape-recorded, nor introduced into evidence in written form. Therefore, we question whether the rule of completeness even applies to this case. See Wilkerson, 84 F.3d at 696 (holding that the rule of completeness \"applies only to writings or recorded statements, not to conversations”). Furthermore, even if the rule were to apply, we would conclude as a matter of law that the exclusion of portions of Howard's confessions did not rise to the level of a constitutional violation. . Howard and Weldon were tried jointly over their motions to sever. Because Howard chose not to testify in the guilt or penalty phase of the trial, his confessions were admissible as statements against interest. His statements inculpated Weldon, however, and so although the statements were admissible against Howard, their admission in the absence of Howard’s availability for cross-examination violated Weldon’s rights under the Confrontation Clause of the Sixth Amendment. The trial court resolved the conflict by admitting Howard’s statements, only after..redacting the portions implicating Weldon. . \"Black beauties” are the street name for a type of amphetamine drug. . The South Carolina Supreme Court's finding that Howard’s confessions indicated that \"Howard played the major role” in Le’s murder was not inconsequential. As a result of this finding, the court vacated Weldon's sentence, concluding that the exclusion of the statements at issue prevented Weldon from presenting relevant evidence in mitigation. . The only possible mitigating circumstance that could be inferred from Howard’s confession is that he lacked the intent to kill Le. In other words, that he wanted only to render her unconscious and he released her when he thought she was still alive. Howard presented his alleged lack of intent to kill Le to the jury numerous times through the testimony of Agent Battle and Lieutenant. Hitehins. Agent Battle testified that Howard’s original plan was merely to steal Le’s car and not to harm her. Agent Battle further stated that Howard reported that he intended to ■use the plastic bag \" 'not [to] kill [Le], [but] just to put her out'.’ \" (J.A. at 636.) Similarly, Lieutenant Hitehins testified" } ]

[ { "docid": "19892736", "title": "", "text": "and citation omitted). Accordingly, although the “Guidelines should be the starting point and the initial benchmark,” district courts may impose sentences within statutory limits based on appropriate consideration of all of the factors listed in § 3553(a), subject to appellate review for “reasonableness.” Gall, 552 U. S., at 49-51. This sentencing framework applies both at a defendant’s initial sentencing and at any subsequent resentencing after a sentence has been set aside on appeal. See 18 U. S. C. § 3742(g) (“A district court to which a case is remanded... shall resen-tenee a defendant in accordance with section 3553”); see also Dillon v. United States, 560 U. S. 817, 828, 827 (2010) (distinguishing between “sentence-modification proceedings” under 18 U. S. C. § 3582(c)(2), which “do not implicate the interests identified in Booker,” and “plenary resentencing proceedings,” which do). B In light of the federal sentencing framework described above, we think it clear that when a defendant’s sentence has been set aside oh appeal and his case remanded for resen-tencing, a district court may consider evidence of a defendant’s rehabilitation since his prior sentencing and that such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range. Preliminarily, Congress could not have been clearer in directing that “[n]o limitation ... be placed on the information concerning the background, character, and conduct” of a defendant that a district court may “receive and consider for the purpose of imposing an appropriate sentence.” 18 U. S. C. §3661. The plain language of §3661 makes no distinction between a defendant’s initial sentencing and a subsequent resentencing after a prior sentence has been set aside on appeal. We have recognized that “the broad language of § 3661” does not provide “any basis for the courts to invent a blanket prohibition against considering certain types of evidence at sentencing.” Watts, 519 U. S., at 152. A categorical bar on the consideration of postsentencing rehabilitation evidence would directly contravene Congress’ expressed intent in § 3661. In addition, evidence of postsentencing rehabilitation may be highly relevant to several of the § 3553(a) factors that Congress has" } ]

[ { "docid": "6415372", "title": "", "text": "rely now upon the technical distinction between vacatur and remand — to which we attached no apparent significance at the time — when substantial rights are involved. In Jennings the Sixth Circuit offered a functional rationale for de novo resentencing upon remand: otherwise the parties would be forced to litigate every conceivable sentencing issue at the initial hearing, regardless of its relevance, lest they be precluded from later raising an issue that becomes relevant only because of subsequent events. The defendant in Jennings had not objected at his first sentencing hearing to certain findings in his pre-sentence report. The court of appeals then remanded for resen-tencing because the district court had overstated the quantity of drugs to be used in computing the defendant’s base offense level. Upon resentencing it turned out that the findings in the PSR, immaterial when the larger quantity of drugs was being considered, would affect a sentence based upon the smaller quantity of drugs. The Seventh Circuit has rejected the de novo approach, holding that “only an issue arising out of the correction of the sentence ordered by [the court of appeals] could be raised in a subsequent appeal.” United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996). The defendant in that case tried to raise in his second appeal issues that he had not previously raised (and that neither the district court nor the court of appeals had therefore ever ruled upon) and that were not affected by the remand for resentencing. By failing to raise the issues upon the first appeal, the court of appeals held, the defendant had waived them. Id. This circuit has not previously adopted either approach to the scope of resentencing on remand. We did hold in United States v. Leonzo, 50 F.3d 1086, 1088 (1995), that upon remand the Government could not offer new evidence in support of the sentencing level for which it had unsuccessfully argued at the original sentencing hearing. Absent special circumstances justifying the Government’s initial failure to carry its burdens of production and of persuasion, we saw “no reason why it should get a" }, { "docid": "22321840", "title": "", "text": "he succeed. Once this knot is undone, the district court must sentence the defendant de novo .... Id. at 685-86 (citation omitted; emphasis added). A district court’s sentence is based on the constellation of offenses for which the defendant was convicted and their relationship to a mosaic of facts, including the circumstances of the crimes, their relationship to one another, and other relevant behavior of the defendant. When the conviction on one or more charges is overturned on appeal and the case is remanded for resentencing, the constellation of offenses of conviction has been changed and the factual mosaic related to those offenses that the district court must consult to determine the appropriate sentence is likely altered. For the district court to sentence the defendant accurately and appropriately, it must confront the offenses of conviction and facts anew. The offenses and facts as they were related at the first sentence may, by then, have little remaining significance. The “spirit of the mandate” in such circumstances is therefore likely to require de novo resentencing. See Bryce, 287 F.3d at 252-54 (holding that resentencing properly proceeded de novo after one of two convictions was vacated and the district court was presented with important evidence that was not previously available); United States v. Morales, 185 F.3d 74, 85 (2d Cir.1999) (citing Atehortva and requiring de novo resen-tencing “[b]ecause the sentences imposed on the reversed and remaining counts are or may be interdependent”), cert. denied, 529 U.S. 1010, 120 S.Ct. 1282, 146 L.Ed.2d 229 (2000). In contrast, resentencing to correct specific sentencing errors does not ordinarily undo the entire “knot of calculation.” That resentencing usually should be de novo when a Court of Appeals reverses one or more convictions and remands for resentencing, then, does not deviate from the rule applied in Stanley II that absent explicit language in the mandate to the contrary, resentencing should be limited when the Court of Appeals upholds the underlying convictions but determines that a sentence has been erroneously imposed and remands to correct that error. To be sure, there may be circumstances when we reverse a sentence" }, { "docid": "22321834", "title": "", "text": "Specifically, we stated: [T]here may have been improper double counting if the district court increased the offense level for the conspiracy count because of the firearm possession charged as an overt act in Count One, and then sentenced Donato to a five-year consecutive sentence under section 924(c) for the use and possession of a firearm during the commission of the carjacking charged in Count Two. We therefore remand to the district court for resentencing in light of this order, without prejudice to the government submitting an argument to the district court explaining why this was not double-counting. We have considered Donato’s • other claims and find them to be without merit. The judgment of the district court is hereby AFFIRMED in part and REMANDED in part. Id. (emphasis added). This remand order neither explicitly stated that the sole issue on remand was whether' “double counting” affected Donato’s sentence on the conspiracy count, nor indicated that we intended a de novo resentencing or were leaving any issues open for the district court’s further consideration other than whether “double counting” improperly affected Donato’s total offense level'. In Stanley II, we held that a similar mandate did not allow for de novo resen-tencing. 54 F.3d at 108. On a preceding appeal in that case, United States v. Stanley, 12 F.3d 17 (2d Cir.1993) {“Stanley I”), cert. denied, 511 U.S. 1044, 114 S.Ct. 1572, 128 L.Ed.2d 216 (1994), we had remanded for resentencing because the district court had failed to make sufficient factual findings to support its loss calculation and thereby may have improperly increased the offense level. Id. at 21. In explaining our mandate, we said: In sum, because the district court failed to indicate whether its loss calculation was based on actual or intended loss, and failed to make sufficient factual findings supporting either calculation, we remand for resentencing. If upon reconsideration, the district court’s sentencing calculation results in a determination of loss different from that originally found, the district court may wish to also recalculate the amount of restitution and make findings as to that issue. We have examined Stanley’s remaining" }, { "docid": "6830494", "title": "", "text": "Gomez had received $3000 for his role in the criminal enterprise. At resentencing, Gomez asked the district court to consider his exemplary behavior in prison during the two years between his original sentencing and resen-tencing as a ground, for departure. When the district court refused to do so, he appealed. We held that a district court may not consider post-sentencing conduct at resen-tencing, concluding that “in light of Rule 35 and the limited nature of the remand, [the district court] had no discretion to reduce Gomez’s sentence due to his exemplary prison conduct.” Id. at 286; see also United States v. Klump, 57 F.3d 801, 803 (9th Cir. 1995) (stating in dicta that \"resentencing on remand is de novo but the court may not consider post-sentencing conduct or conduct beyond the scope of a limited remand\"). Gomez-Padilla is inapplicable to the instant case. Here, the district court was to sentence Green ab initio. In Gomes-Padil-la, the district court was to consider a single issue upon resentencing and thus was precluded from considering other sentencing issues. More importantly, however, we agree with Green that Gomez-Padilla is no longer controlling authority in light of Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). In Koon, the Court specifically stated that a district court cannot be precluded categorically from considering any factor at sentencing so long as that factor is not one of the \"forbidden\" factors outlined in the guidelines. Id. at 2044-45. Three circuit courts, post-Koon, have looked at the question of whether post-sentencing conduct, specifically rehabilitation, may be considered as a basis for departure upon resentencing. See United States v. Rhodes, 145 F.3d 1375 (D.C.Cir.1998); United States v. Core, 125 F.3d 74, 77 (2d Cir.1997), cert. denied, - U.S. , 118 S.Ct. 735, 139 L.Ed.2d 672 (1998); United States v. Sally, 116 F.3d 76, 80 (1997). All held that it was a proper basis for departure. We join our sister circuits. The Second Circuit determined that there was no difference between post-offense rehabilitation and post-sentencing rehabilitation. Core, 125 F.3d at 77. Since the Second Circuit already" }, { "docid": "23348580", "title": "", "text": "no reason to raise the issue at the original sentencing; he had reason only on remand. See Jennings, 83 F.3d at 151. (At issue in Jennings was whether evidence of relevant conduct which made no difference to the BOL at the original sentencing could be introduced on remand, when it was of considerable consequence. See id.) Other circuits have also used the language of \"de novo resentencing” in describing the ability of a district court resen-tencing on one count when other counts have been reversed to consider matters inexorably tied to the count of conviction on resentenc-ing. See, e.g., Atehortva, 69 F.3d at 686. . Of course, our case does not involve the issue of consideration of an intervening conviction and sentence as a \"prior sentence’’ when there is a new conviction and resen-tencing after a conviction is vacated. Nor do we address the different issue of post-sentencing rehabilitative conduct. . Another Ninth Circuit case, United States v. Green, 152 F.3d 1202 (9th Cir.1998), suggests that somehow Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), requires a district court to consider on a limited remand for resentencing evidence of post-initial-sentence matters so long as they are not forbidden factors. See Green, 152 F.3d at 1207. Koon did not address U.S.S.G. § 4A1.2(a)(1), addressed a different problem, and we are, in any event, unpersuaded by this theory." }, { "docid": "6415371", "title": "", "text": "distribution count in resentencing the defendant on the schoolyard count. Several circuits have held that when the court of appeals vacates a sentence the district court may, upon remand, take any evidence and hear any argument that it could have considered in the original sentencing proceeding. See United States v. Atehortva, 69 F.3d 679, 685 (2d Cir.1995); United States v. Jennings, 83 F.3d 145, 151 (6th Cir.1996); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992); United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995); United States v. Moore, 83 F.3d 1231, 1235 (10th Cir.1996). Two rationales have been given for this practice of de novo resentencing. In Moore, the Tenth Circuit reasoned that when a sentence has been vacated and the count remanded for resentencing the defendant is in the same position he was in before being sentenced for the first time. 83 F.3d at 1235. This is a rather formalistic approach. Although upon Whren’s first appeal we remanded the case for resentencing without vacating his sentence, we do not want to rely now upon the technical distinction between vacatur and remand — to which we attached no apparent significance at the time — when substantial rights are involved. In Jennings the Sixth Circuit offered a functional rationale for de novo resentencing upon remand: otherwise the parties would be forced to litigate every conceivable sentencing issue at the initial hearing, regardless of its relevance, lest they be precluded from later raising an issue that becomes relevant only because of subsequent events. The defendant in Jennings had not objected at his first sentencing hearing to certain findings in his pre-sentence report. The court of appeals then remanded for resen-tencing because the district court had overstated the quantity of drugs to be used in computing the defendant’s base offense level. Upon resentencing it turned out that the findings in the PSR, immaterial when the larger quantity of drugs was being considered, would affect a sentence based upon the smaller quantity of drugs. The Seventh Circuit has rejected the de novo approach, holding that “only an issue arising out of" }, { "docid": "22625979", "title": "", "text": "for bank fraud; (4) find facts in support of a sentencing enhancement for leading a conspiracy; and (5) specify who exactly was harmed before imposing a “fifty victim” sentencing enhancement. Defendants also argue that their sentences were substantively unreasonable because people convicted of “more serious” crimes, such as murder and terrorism, have been sentenced to only a few years more than the Rigases. 1. Scope of Resentencing The Rigases argue principally that, following our decision in Quintieri, 306 F.3d at 1227-28, we have held that defendants must be resentenced de novo where a portion of a conviction has been reversed on appeal. The government asks us to affirm on the basis of the District Court’s limited resentencing because (1) defendants did not challenge their sentences on the initial appeal, thereby waiving any arguments that the sentences were unreasonable, and (2) “the sentencing considerations relating to Count Twenty-Three were entirely severable from the considerations on the other counts,” Appellee’s Br. 35. In Quintieri, we distinguished between conviction errors, for which de novo resentencing was the “default rule,” and sentencing errors, for which limited resentencing was the default rule. We held: When the conviction on one or more charges is overturned on appeal and the case is remanded for resentencing, the constellation of offenses of conviction has been changed and the factual mosaic related to those offenses that the district court must consult to determine the appropriate sentence is likely altered. For the district court to sentence the defendant accurately and appropriately, it must confront the offenses of conviction and facts anew. 306 F.3d at 1227-28; see also id. at 1228 (“[Rjesentencing usually should be de novo when a Court of Appeals reverses one or more convictions and remands for resentencing .... ”). Quintieri created a “default rule” that de novo resentencing is required where a conviction is reversed in part on appeal. Quintieri, 306 F.3d at 1229 n. 6 (“Today we conclude that when a resentencing results from a vacatur of a conviction, we in effect adhere to the de novo default rule ... because multiple convictions are ‘inextricably linked’ in" }, { "docid": "22321835", "title": "", "text": "whether “double counting” improperly affected Donato’s total offense level'. In Stanley II, we held that a similar mandate did not allow for de novo resen-tencing. 54 F.3d at 108. On a preceding appeal in that case, United States v. Stanley, 12 F.3d 17 (2d Cir.1993) {“Stanley I”), cert. denied, 511 U.S. 1044, 114 S.Ct. 1572, 128 L.Ed.2d 216 (1994), we had remanded for resentencing because the district court had failed to make sufficient factual findings to support its loss calculation and thereby may have improperly increased the offense level. Id. at 21. In explaining our mandate, we said: In sum, because the district court failed to indicate whether its loss calculation was based on actual or intended loss, and failed to make sufficient factual findings supporting either calculation, we remand for resentencing. If upon reconsideration, the district court’s sentencing calculation results in a determination of loss different from that originally found, the district court may wish to also recalculate the amount of restitution and make findings as to that issue. We have examined Stanley’s remaining contentions regarding his sentence and find them to be without merit. CONCLUSION Based on the foregoing, we affirm defendant’s conviction, but vacate and remand this case for further sentencing proceedings consistent with this opinion. Id. (emphasis added).' On appeal after remand and resentencing, we read our original mandate as effecting a limited remand on the sole issue of whether the loss amount was properly calculated. We concluded that the mandate of the Stanley I panel “did not call for de novo resentenc-ing. Instead, we'identified a narrow issue for remand .... ” Stanley II, 54 F.3d at 108. We therefore held that the defendant was barred by the law of the case’s “mandate rule” from challenging a two-level upward adjustment to his offense level for more than minimal planning and multiple victims that had been imposed at his original sentencing, because the defendant had failed to challenge these adjustments in his first appeal. Id. at 107-08. To support this conclusion, we cited United States v. Bell, 988 F.2d 247, 250 (1st Cir.1993), for the proposition that" }, { "docid": "22321839", "title": "", "text": "On remand, the district court upwardly departed from the Guideline range even though it had not upwardly departed during the original sentencing. Atehortva, 69 F.3d at 683. We upheld this upward departure, concluding that: [B]ecause the resentencing was based on a different set of circumstances, the court was free to consider grounds for departure it had not contemplated in the first sentencing proceeding. That is, the resentencing proceeding was appropriately treated as a de novo sentencing, for the remand did not specifically limit the scope of resentencing. Id. at 685. This seems to suggest that sentencing must proceed de novo unless a court “specifically limit[s] the scope of re-sentencing.” But Atehortva’s holding is properly limited to cases where one or more convictions have been vacated and we have remanded for resentencing on the remaining counts. In Atehortva, we explained: When a defendant challenges convictions on 'particular counts that are inextricably tied to other counts in determining the sentencing range under the guidelines, the defendant assumes the risk of undoing the intricate knot of calculations should he succeed. Once this knot is undone, the district court must sentence the defendant de novo .... Id. at 685-86 (citation omitted; emphasis added). A district court’s sentence is based on the constellation of offenses for which the defendant was convicted and their relationship to a mosaic of facts, including the circumstances of the crimes, their relationship to one another, and other relevant behavior of the defendant. When the conviction on one or more charges is overturned on appeal and the case is remanded for resentencing, the constellation of offenses of conviction has been changed and the factual mosaic related to those offenses that the district court must consult to determine the appropriate sentence is likely altered. For the district court to sentence the defendant accurately and appropriately, it must confront the offenses of conviction and facts anew. The offenses and facts as they were related at the first sentence may, by then, have little remaining significance. The “spirit of the mandate” in such circumstances is therefore likely to require de novo resentencing. See Bryce," }, { "docid": "7340367", "title": "", "text": "its opinion in Pepper v. United States, - U.S. -, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), which controls our analysis. Pepper was originally sentenced to 24-months imprisonment, which represented a significant downward departure from the Guideline range. The government appealed the sentence and the Eighth Circuit held that the sentencing judge ignored the Guidelines and impermissibly departed out of a “desire to sentence [the defendant] to the shortest possible term of imprisonment that would allow him to participate in the intensive drug treatment program at the federal prison.” United States v. Pepper, 412 F.3d 995, 999 (8th Cir.2005) (Pepper I). On remand, the district court again sentenced Pepper to 24-months imprisonment, this time based largely on Pepper’s rehabilitation while incarcerated. The Eighth Circuit once more reversed, holding that “evidence of [defendant]^ post-sentencing rehabilitation is not relevant and will not be permitted at resentencing because the district court could not have considered that evidence at the time of the original sentencing.” United States v. Pepper, 486 F.3d 408, 413 (8th Cir.2007) (Pepper II). The Supreme Court reversed, and held that the district court was permitted to sentence de novo and consider the defendant’s post-incarceration rehabilitation. Pepper, 131 S.Ct. at 1236. The Supreme Court emphasized that sentencing judges exercise wide discretion in the types of evidence they may consider when imposing a sentence and that, consistent with that discretion, no restrictions should be placed on the district court’s ability to consider evidence of post-incarceration rehabilitation. Id. at 1235-36. Because Pepper was not announced until after the District Court had resentenced Diaz, the court could not have known that it was permitted to consider Diaz’s post-sentencing rehabilitation consistent with the Supreme Court’s decision in Pepper. As outlined above, Diaz and his attorney both explained at the resentencing hearing that Diaz had a positive record since he had been incarcerated and was attempting to better himself. The District Court did in fact permit the defense to offer additional evidence at the resentencing without restricting the nature of the evidence it could proffer. Nonetheless, the District Court said that Diaz’s rehabilitation “is fine as" }, { "docid": "7340366", "title": "", "text": "instruction regarding what the new sentence should be on remand. However, a mere “see ” citation to a case from another circuit, even with an explanatory parenthetical, does not constitute the kind of specific limitation that we held was necessary to overcome the default de novo standard we established in Miller. In contrast, in Diaz I we provided a very general instruction, stating that “we remand this case to the District Court for resentencing.” 592 F.3d at 476. If we had intended the District Court to simply subtract the 120-month sentence associated with the vacated count, we could have easily so stated. We did not. Accordingly, the District Court correctly concluded that we did not limit its ability to resentence de novo and that because the original sentence contained interdependent counts, de novo resentencing was permitted. B. Post-sentencing rehabilitation Having concluded that de novo re-sentencing was appropriate on remand, we turn to Diaz’s alternative argument: that the District Court failed to fully consider Diaz’s post-incarceration rehabilitation. Subsequent to the resentencing hearing, the Supreme Court issued its opinion in Pepper v. United States, - U.S. -, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), which controls our analysis. Pepper was originally sentenced to 24-months imprisonment, which represented a significant downward departure from the Guideline range. The government appealed the sentence and the Eighth Circuit held that the sentencing judge ignored the Guidelines and impermissibly departed out of a “desire to sentence [the defendant] to the shortest possible term of imprisonment that would allow him to participate in the intensive drug treatment program at the federal prison.” United States v. Pepper, 412 F.3d 995, 999 (8th Cir.2005) (Pepper I). On remand, the district court again sentenced Pepper to 24-months imprisonment, this time based largely on Pepper’s rehabilitation while incarcerated. The Eighth Circuit once more reversed, holding that “evidence of [defendant]^ post-sentencing rehabilitation is not relevant and will not be permitted at resentencing because the district court could not have considered that evidence at the time of the original sentencing.” United States v. Pepper, 486 F.3d 408, 413 (8th Cir.2007) (Pepper II). The Supreme" }, { "docid": "23348579", "title": "", "text": "evidentiary hurdle, to reduce his BOL from 28 to 26. See U.S.S.G. § 2Dl.l(c) (designating a BOL of 26 for more than 100 but less than 400 kilograms of marihuana). Ticchiar-elli has never asserted that he could reduce the amount of hashish oil by that much. . The government counts Ticchiarelli’s missed opportunities as follows: (1) the initial objections to the Presentence Investigation Report’s (\"PSR”) weight calculations, (2) the objections in the supplemental response to the PSR, (3) the evidentiary hearing held before Judge Hornby, (4) the original sentencing hearing, and (5) the first appeal to this court. . The D.C. Circuit states that it is rejecting the \"de novo test” set forth in Jennings in favor of a \"waiver test.” See Whren, 111 F.3d at 959-60. It is far from clear that these approaches are always analytically distinct, despite the semantic differences. Jennings, after all, involved a fact situation which would have met the Whren test of non-waiver. See Jennings, 83 F.3d at 146-48; Whren, 111 F.3d at 959-60. The defendant in Jennings had no reason to raise the issue at the original sentencing; he had reason only on remand. See Jennings, 83 F.3d at 151. (At issue in Jennings was whether evidence of relevant conduct which made no difference to the BOL at the original sentencing could be introduced on remand, when it was of considerable consequence. See id.) Other circuits have also used the language of \"de novo resentencing” in describing the ability of a district court resen-tencing on one count when other counts have been reversed to consider matters inexorably tied to the count of conviction on resentenc-ing. See, e.g., Atehortva, 69 F.3d at 686. . Of course, our case does not involve the issue of consideration of an intervening conviction and sentence as a \"prior sentence’’ when there is a new conviction and resen-tencing after a conviction is vacated. Nor do we address the different issue of post-sentencing rehabilitative conduct. . Another Ninth Circuit case, United States v. Green, 152 F.3d 1202 (9th Cir.1998), suggests that somehow Koon v. United States, 518 U.S. 81, 116" }, { "docid": "7340372", "title": "", "text": "consideration of Diaz’s post-incarceration rehabilitation. IV. For the foregoing reasons, we will vacate the judgment of sentence and remand to the District Court for proceedings consistent with this opinion. . Under § 3E1.1 and § 4B1.1(c)(3) this default or floor Guideline range for career offenders convicted of at least one § 924(c) count can be reduced if the defendant accepted responsibility. These modifications are not relevant here because Diaz did not accept responsibility. . In so holding, we are careful to note, as we did in Miller, that we take no position on whether de novo resentencing is the default approach after a count contained in a non-interdependent sentence has been vacated. See Miller, 594 F.3d at 180. . Importantly, we note, as the Supreme Court did in Pepper, that to the extent that a court remands for a limited resentencing proceeding, and not a de novo proceeding, limitations on the consideration of post-sentencing rehabilitation may continue to be appropriate. See Pepper, 131 S.Ct. at 1249 n. 17. In that vein, it is worth noting that Lloyd itself dealt with a remand pursuant to Booker, and, in that context, the exclusion of post-sentencing rehabilitative evidence may still be proper— an issue we need not reach here. This subtle distinction may not have been discerned by the District Court who could have nevertheless been guided by Lloyd. Indeed, the distinction between a limited Booker remand and de novo remand seems to have made little difference to the Supreme Court, which cited Lloyd as emblematic of the circuit split regarding the role of post-sentencing rehabilitation evidence. Pepper, 131 S.Ct. at 1239 n. 6. We also note that Pepper, Sally and § 5K2.19 deal with requests for downward departures or variances based on post-sentence rehabilitation, whereas Diaz primarily urged a sentence at the bottom of the applicable Guideline range. Because the relief Diaz seeks is less extraordinary, post-sentencing rehabilitation should be considered. Nor does Pepper indicate that evidence of post-sentencing rehabilitation is only relevant to requests for downward departures or variances. See id. at 1236. Instead, Pepper discusses the importance of post-sentencing rehabilitation" }, { "docid": "7340371", "title": "", "text": "on those limitations, that reliance was erroneous in light of Pepper. The government conceded as much at oral argument when it agreed that Lloyd’s continuing validity was thrown into question by Pepper. The fact that no revised presentence report was prepared documenting any alleged post-incarceration rehabilitation further supports a conclusion that the issue of rehabilitation was not fully considered. Given the ambiguity in the record, the interests of justice demand that we remand (yet again) to the District Court so that Diaz and the District Court have every opportunity to take counsel from the Supreme Court’s instructions in Pepper: that is, that evidence of post-sentencing rehabilitation may be considered when re-sentencing de novo. The marginal effect of our decision may be slim and the District Court may conclude that no alteration of the sentence is necessary. But, out of an abundance of caution and due deference to the Supreme Court’s clear instructions in Pepper, we vacate the judgment of sentence imposed by the District Court and remand for a de novo resentencing proceeding including full consideration of Diaz’s post-incarceration rehabilitation. IV. For the foregoing reasons, we will vacate the judgment of sentence and remand to the District Court for proceedings consistent with this opinion. . Under § 3E1.1 and § 4B1.1(c)(3) this default or floor Guideline range for career offenders convicted of at least one § 924(c) count can be reduced if the defendant accepted responsibility. These modifications are not relevant here because Diaz did not accept responsibility. . In so holding, we are careful to note, as we did in Miller, that we take no position on whether de novo resentencing is the default approach after a count contained in a non-interdependent sentence has been vacated. See Miller, 594 F.3d at 180. . Importantly, we note, as the Supreme Court did in Pepper, that to the extent that a court remands for a limited resentencing proceeding, and not a de novo proceeding, limitations on the consideration of post-sentencing rehabilitation may continue to be appropriate. See Pepper, 131 S.Ct. at 1249 n. 17. In that vein, it is worth noting" }, { "docid": "14934203", "title": "", "text": "to consider grounds for departure it had not contemplated in the first sentencing proceeding. That is, the resen-tencing proceeding was appropriately treated as a de novo sentencing, for the remand did not specifically limit the scope of resentenc-ing. See United States v. Duso, 42 F.3d 365, 368 (6th Cir.1994) (noting that unless restricted by remand order, district court may “revisit the entire sentencing procedure”); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.) (in resentencing on remand, “the sentencing court [must] begin anew, so that ‘fully de novo sentencing’ is entirely appropriate” (emphasis omitted)), cert. denied, 502 U.S. 879, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (district court can hear any relevant evidence on issue presented that it could have heard at first hearing). Courts have generally treated resentencing hearings as opportunities for de novo hearings when resentencing occurs as a result of misapplications of the sentencing guidelines. We believe the same principle applies here. When a defendant challenges convictions on particular counts that are inextricably tied to other counts in determining the sentencing range under the guidelines, the defendant assumes the risk of undoing the intricate knot of calculations should he succeed. Cf. Duso, 42 F.3d at 368 (noting that “[t]here is a calculated risk taken by a defendant in appealing his sentence computation”). Once this knot is undone, the district court must sentence the defendant de novo and, if a more severe sentence results, vindictiveness will not be presumed. Finally, Correa’s position disregards the fact that the district court had originally departed upward with regard to count one based on Correa’s “higher degree of culpability” than recklessness in shooting at the agents, which was the same conduct that the court viewed as “attempted murder” at the resentencing hearing. Thus, to prohibit the court from considering enhancements or departures at the resentencing based upon this conduct would be a windfall for Correa since it would leave out of the sentencing equation a fact that played a critical part in his initial sentence: that he repeatedly shot at the" }, { "docid": "22321841", "title": "", "text": "287 F.3d at 252-54 (holding that resentencing properly proceeded de novo after one of two convictions was vacated and the district court was presented with important evidence that was not previously available); United States v. Morales, 185 F.3d 74, 85 (2d Cir.1999) (citing Atehortva and requiring de novo resen-tencing “[b]ecause the sentences imposed on the reversed and remaining counts are or may be interdependent”), cert. denied, 529 U.S. 1010, 120 S.Ct. 1282, 146 L.Ed.2d 229 (2000). In contrast, resentencing to correct specific sentencing errors does not ordinarily undo the entire “knot of calculation.” That resentencing usually should be de novo when a Court of Appeals reverses one or more convictions and remands for resentencing, then, does not deviate from the rule applied in Stanley II that absent explicit language in the mandate to the contrary, resentencing should be limited when the Court of Appeals upholds the underlying convictions but determines that a sentence has been erroneously imposed and remands to correct that error. To be sure, there may be circumstances when we reverse a sentence in which the “spirit of the mandate” requires de novo sentencing, for example when the reversal effectively undoes the entire “knot of calculation,” but this is not such a case. B. The Implications of a Limited Remand Applying these principles, the remand in this case was limited to the issue of “double counting.” The law of the case doctrine therefore dictates what issues may be raised in the district court and on any subsequent appeal. See Stanley II, 54 F.3d at 107. The law of the case ordinarily “forecloses relitigation of issues expressly or impliedly decided by the appellate court.” Ben Zvi, 242 F.3d at 95 (citations, internal quotation marks, and emphasis omitted). And “where an issue was ripe for review at the time of an initial appeal but was nonetheless foregone,” it is considered waived and the law of the case doctrine bars the district court on remand and an appellate court in a subsequent appeal from reopening such issues “unless the mandate can reasonably be understood as permitting it to do so.” Id." }, { "docid": "7340365", "title": "", "text": "of the § 924(c) offense, the sentences in this case were interdependent. Therefore, absent specific instructions to the contrary, the District Court appropriately resentenced Diaz de novo. Thus, we turn to whether there was any such instruction. Diaz contends that the reference in Diaz I to the Sixth Circuit’s decision in United States v. Taylor, 13 F.3d 986, 994 (6th Cir.1994), with a parenthetical description of Taylor as “prescribing” the “appropriate remedy” on remand, unambiguously dictated limited resentencing. In Taylor, as we did in Diaz I, the Sixth Circuit vacated a second § 924(c) conviction because it was not based on a second underlying predicate offense. Id. In issuing its remedy, the Sixth Circuit “remand[ed] to the district court with an order to vacate [the defendant’s] conviction and sentence on the second [§ 924(c) count].” Id. The Court directed that the defendant, “should remain sentenced to 27 months on Count 1 [the drug trafficking count], and to 5 years on the single § 924(c)(1) conviction.” Id. There is no question that Taylor involved an explicit instruction regarding what the new sentence should be on remand. However, a mere “see ” citation to a case from another circuit, even with an explanatory parenthetical, does not constitute the kind of specific limitation that we held was necessary to overcome the default de novo standard we established in Miller. In contrast, in Diaz I we provided a very general instruction, stating that “we remand this case to the District Court for resentencing.” 592 F.3d at 476. If we had intended the District Court to simply subtract the 120-month sentence associated with the vacated count, we could have easily so stated. We did not. Accordingly, the District Court correctly concluded that we did not limit its ability to resentence de novo and that because the original sentence contained interdependent counts, de novo resentencing was permitted. B. Post-sentencing rehabilitation Having concluded that de novo re-sentencing was appropriate on remand, we turn to Diaz’s alternative argument: that the District Court failed to fully consider Diaz’s post-incarceration rehabilitation. Subsequent to the resentencing hearing, the Supreme Court issued" }, { "docid": "22321823", "title": "", "text": "limit the scope of the remand. If the former view prevails in the case before us, the district court was required to resentence Donato de novo and we must hear on appeal every issue raised at resentencing so long as we have not previously decided it. If the latter applies, then the remand was limited and, under the doctrine of the law of the case, the district court should not have considered those issues, if any, that Dona-to previously waived or that we previously decided. Donato appeals from the sentence imposed on him by the district court following our remand of the case for resentenc-ing because it appeared that, at Donato’s first sentencing, “double counting” may have improperly increased his offense level on one count. On remand, the district court concluded that it had indeed improperly increased Donato’s offense level and, accordingly, reduced his sentence. The defendant argues on appeal:. (1) through counsel, (a) that the district court was required to hold a hearing to determine whether he was competent to be resen-tenced, (b) that the district court was required to order a new presentence investigation report (“PSR”) before resentencing him, (c) that the district court improperly failed to consider the required factors before ordering restitution and a fine, and (d) that the amount of the fine was in error; and (2) pro se, (a) that the district court improperly failed to consider his motion for a downward departure, and (b) that his sentence violates the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Eighth Amendment to the Constitution, and § 2K2.4 of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). As the government concedes, the district court erred when it imposed a fine above the amount prescribed by the Guidelines without explaining its reasons for a departure. We conclude that all of Donato’s other arguments are either barred by the law of the case or without merit. BACKGROUND In separate incidents in 1993 and 1994, Donato carjacked three Mercedes Benz and three BMW vehicles, each time threatening his victim with" }, { "docid": "22321822", "title": "", "text": "SACK, Circuit Judge. The defendant-appellant Carlo Donato was resentenced by the United States District Court for the Eastern District of New York (Jacob Mishler, Judge) upon remand after a decision of this court vacating his first sentence. Donato appeals on a variety of grounds. In order to decide this appeal, we must address knotty questions that emerge when an appeal results in a remand for resentencing. The difficulty arises largely from the apparent tension between the view, adverted to in United States v. Atehortva, 69 F.Bd 679, 685 (2d Cir.1995), cert. denied sub nom. Correa v. United States, 517 U.S. 1249, 116 S.Ct. 2510, 135 L.Ed.2d 199 (1996), that resen-tencing should proceed de novo unless the remand “specifically limit[s] the scope of resentencing,” and our conclusion in United States v. Stanley, 54 F.3d 103, 108 (2d Cir.), cert. denied, 516 U.S. 891, 116 S.Ct. 238, 133 L.Ed.2d 166 (1995), that resen-tencing is limited, not de novo, when the remanding court identifies a sentencing error and remands for correction of that error but does not explicitly limit the scope of the remand. If the former view prevails in the case before us, the district court was required to resentence Donato de novo and we must hear on appeal every issue raised at resentencing so long as we have not previously decided it. If the latter applies, then the remand was limited and, under the doctrine of the law of the case, the district court should not have considered those issues, if any, that Dona-to previously waived or that we previously decided. Donato appeals from the sentence imposed on him by the district court following our remand of the case for resentenc-ing because it appeared that, at Donato’s first sentencing, “double counting” may have improperly increased his offense level on one count. On remand, the district court concluded that it had indeed improperly increased Donato’s offense level and, accordingly, reduced his sentence. The defendant argues on appeal:. (1) through counsel, (a) that the district court was required to hold a hearing to determine whether he was competent to be resen-tenced, (b) that" }, { "docid": "14934202", "title": "", "text": "at the first sentencing, it would not have upwardly departed on count two at the second sentencing. Nothing in the record supports this assumption. To the contrary, the district court expressly stated at the second sentencing that “had Mr. Correa been acquitted of the drug conspiracy and the related count, the Court would have likewise departed on the basis of the same virtually unassailable facts.” Third, Correa overlooks the fact that, unlike in Coke and Pearce, this case does not involve a retrial resulting in the same conviction. Rather, the resentencing was based on a conviction solely on one count instead of three. When the offenses of conviction are the same and the sole difference at the second sentencing is an increased sentence, there is at least a basis for presuming vindictiveness. No such presumption arises where, as here, the court considers a departure on a single count after the only other two counts have been dismissed. We find that because the resentencing was based on a different set of circumstances, the court was free to consider grounds for departure it had not contemplated in the first sentencing proceeding. That is, the resen-tencing proceeding was appropriately treated as a de novo sentencing, for the remand did not specifically limit the scope of resentenc-ing. See United States v. Duso, 42 F.3d 365, 368 (6th Cir.1994) (noting that unless restricted by remand order, district court may “revisit the entire sentencing procedure”); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.) (in resentencing on remand, “the sentencing court [must] begin anew, so that ‘fully de novo sentencing’ is entirely appropriate” (emphasis omitted)), cert. denied, 502 U.S. 879, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (district court can hear any relevant evidence on issue presented that it could have heard at first hearing). Courts have generally treated resentencing hearings as opportunities for de novo hearings when resentencing occurs as a result of misapplications of the sentencing guidelines. We believe the same principle applies here. When a defendant challenges convictions on particular counts that" } ]

[ { "docid": "7138065", "title": "", "text": "It is also to be noted that the plaintiff acquired the property involved after the ordinance in question was in full force and effect. While this does not preclude the plaintiff from attacking the validity of the ordinance it must weigh heavily against him in evaluating the extent of injury to liis property. Ardolino v. Board of Adjustment, Borough of Florham Park, 1957, 24 N.J. 34, 130 A.2d 847. All presumptions are indulged in favor of the validity and reasonableness of a zoning ordinance if it is within the legislative power of the municipality. Sinclair Refining Co. v. City of Chicago, 7 Cir., 1949, 178 F.2d 214. 62 C.J.S. Municipal Corporations, § 228(2) c (a), p. 565. It is also well settled that a municipal ordinance restricting the use of property in certain zones for residential purposes only, is not of itself an improper exercise of police power even though it may limit the marketability of certain property therein, and that, before such ordinance can be declared unconstitutional, its provisions must be shown to be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Euclid, Ohio, v. Ambler, 1926, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Zahn v. Board of Public Works, 1927, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074. Plaintiff has not overcome the presumption of validity in the general application of the ordinance, nor has he established such irreparable injury as to constitute a deprivation of property or a clearly arbitrary and unreasonable restriction as to its use not related to the public purposes which give rise to the proper exercise of police power. Nectow v. City of Cambridge, 1928, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842. As to whether or not the ordinance is inconsistent with powers delegated by Congress to the Federal Communications Commission or is an unwarranted interference with interstate commerce, the following quotations set forth in the opinion of the District Court are appropriate : “In conferring upon Congress the regulation of commerce, it was never intended to cut the" } ]

[ { "docid": "21854744", "title": "", "text": "prohibiting abandonment may effect an unconstitutional taking under the Fifth Amendment. The Trustee argues that use of the estate’s assets to comply with state law may deplete the estate to such an extent that the secured creditors will receive less in satisfaction of their claims than they otherwise would have. The rights of a secured creditor in the debtor's assets are “property” subject to a \"taking.” See United States v. Security Indus. Bank, 459 U.S. 70, 103 S.Ct. 407, 411, 74 L.Ed.2d 235 (1982). But we are not persuaded by the Trustee’s argument that an unconstitutional taking could result from forbidding abandonment here. First, the state’s enforcement of its environmental protection laws cannot be characterized as a taking; rather it is a permissible exercise of the state’s regulatory power to promote the public good, under a long line of cases dealing with just that distinction. E.g., Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (municipal zoning ordinances restricting type and density of buildings held not a taking); Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (landmark preservation ordinance); Goldblatt v. Hempstead, 369 U.S. 590 (1962) (town ordinance prohibiting use of land for mining); Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928) (statute requiring landowner to destroy diseased cedar trees); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (industrial zoning regulation); Hadecheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915) (municipal ordinance prohibiting brickmaking); Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887) (state statute declaring places of manufacture of liquor to be nuisances); Troy v. Renna, 111 F.2d 287 (3d Cir.1984) (state statute creating statutory tenancies for senior citizens and disabled persons). See generally Michel-man, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv.L.Rev. 1165, 1183-84 (1967) (factors relevant to classifying an action as regulation or taking). Second, the Trustee contends that this case presents" }, { "docid": "20670757", "title": "", "text": "the amendment thereto fails to adequately state a cause of action against these defendants under the Civil Rights Act of 1871. I. THE PLAINTIFF FAILS TO ADEQUATELY STATE A CAUSE OF ACTION UNDER 42 U.S.C. § 1983. The thrust of Counts I and III of the complaint is that the defendants violated the plaintiff’s civil rights in passing certain resolutions and ordinances and in objecting to plaintiff’s attempt to withdraw a stipulation in a case in the Circuit Court of Lake County for alleged failure to comply with a Park City ordinance. The plaintiff does not challenge the validity of any Park City ordinance. The plaintiff’s action in Counts I and III is brought under 42 U.S.C. § 1983. It is clear that the necessity for restrictions in municipal zoning ordinances have long been recognized along with certain rights of property owners. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). However, ordinances such as those complained of in the instant action which prohibit the operation of certain business without first obtaining municipal permission or without first complying with prescribed standards do not deprive one of his property without due process of law nor deny anyone equal protection of the law. Fischer v. City of St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018 (1904); Mosher v. Beirne, 357 F.2d 638 (8th Cir. 1966). A local government exercise of its police power in withholding permission to carry on a trade or business which fails to fully comply with the local ordinance is not violative of rights secured by the Fourteenth Amendment. People of the State of New York ex rel. Lieberman v. Van de Carr, 199 U.S. 552, 26 S.Ct. 144, 50 L.Ed. 305 (1905). Numerous federal courts have held that the enactment of zoning type ordinances by local municipal officials is not sufficient in and of itself to subject local officials to civil rights actions for denial of due process or equal protection. Garren v. City of Winston-Salem, North Carolina, 463 F.2d 54 (4th Cir. 1972); Elmwood Properties" }, { "docid": "10843890", "title": "", "text": "under the Supremacy Clause. Although the federal government through the ICCTA has legislated in “an area where there has been a history of significant federal presence,” Locke, 529 U.S. at 108, 120 S.Ct. 1135, West Palm Beach is not legislating in that field of historic federal dominance. Rather, in contrast to the situation highlighted by the Court in Locke, West Palm Beach is acting under the traditionally local police power of zoning and health and safety regulation. The Supreme Court has long recognized the authority of local governments to establish guidelines for the use of property through such zoning ordinances. See generally Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). As we reiterated more recently, “[m]unicipalities may zone land to pursue any number of legitimate objectives related to the health, safety, morals, or general welfare of the community.” Ga. Manufactured Hous. Ass’n, 148 F.3d at 1309 (quoting Scurlock v. City of Lynn Haven, 858 F.2d 1521, 1525 (11th Cir.1988)). Because the alleged encroachment upon federal jurisdiction here does not occur by the municipality’s legislating in a field of historic federal presence, but through the exercise of its inherently local powers, “[t]he principles of federalism and respect for state sovereignty that underlie the Court’s reluctance to find pre-emption,” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 533, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (Blackmun, J., concurring), place a “considerable burden” on appellant. De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 814, 117 S.Ct. 1747, 138 L.Ed.2d 21 (1997). Nonpre-emption of West Palm Beach Ordinances When evaluating the pre-emptive scope of a federal statute, we recall that “ ‘[t]he purpose of Congress is the ultimate touchstone’ in every pre-emption case.” Medtronic, 518 U.S. at 485, 116 S.Ct. 2240 (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963)). Where, as here, Congress has included a specific provision governing the pre-emptive effect of the legislation, we must" }, { "docid": "13730117", "title": "", "text": "by a compelling governmental interest employing the least restrictive means to achieve its purposes. Sherbert v. Verner, 374 U.S. at 407, 83 S.Ct. at 1795; Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 74, 101 S.Ct. 2176, 2185, 68 L.Ed.2d 671 (1981) (ordinance which excludes live entertainment violates First Amendment). Concededly, the City has drawn broad lines to protect its tranquil neighborhoods but these lines are a “reasonable margin to insure effective enforcement” of quiet residential zones. In summary, the Lakewood ordinance is constitutional although it creates exclusive residential districts and thereby prohibits the construction of church buildings in the districts. The facts of the present case show that the ordinance does not infringe the Congregation’s religious freedom. Furthermore, the ordinance does not offend the Due Process Clause because it is a legitimate exercise of the City’s police power. The ordinance merely frustrates the Congregation’s desire to locate itself in a more pleasant, more convenient and less expensive location. Such desires, however, are not protected by the Constitution. Judgment affirmed. . The Clause provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...” It is applied to state and local governments through the due process clause of the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). . California and Florida state courts have upheld municipal zoning ordinances which exclude churches from residential districts. However, many other states confronting similar ordinances have held them unconstitutional. See 82 Am.Jur.2d Zoning and Planning § 154 (1976). Courts striking down such ordinances have reasoned that the presence of churches in residential areas is beneficial to the public morals and welfare. Any exclusion of churches from neighborhoods is “arbitrary and unreasonable,” hence unconstitutional. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). This reasoning is problematical because an ordinance permitting churches but excluding secular interests also protected by the First Amendment runs afoul of the Establishment Clause. Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Heffron" }, { "docid": "11181780", "title": "", "text": "394, 67 L.Ed. 785 pondered the constitutionality of a local zoning ordinance and wrote an opinion in language far more reminiscent of Ferguson than of Adkins. It “must be said before the [zoning] ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” City of Euclid v. Ambler Realty Co., 1926, 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303, 314. Upholding the zoning code over claims that it violated the due process and equal protection clauses, the Court illustrated how such ordinances have a clear relationship to a city’s efforts to protect the health and security of children, to suppress disorder, to extinguish fires, to regulate street traffic, to prevent congestion, to reduce the “danger of contagion,” to facilitate police protection, to lessen the noise level and to provide a wholesome residential atmosphere to its citizens. See also Gorieb v. Fox, 1927, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228; Nectow v. City of Cambridge, 1928, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842; Washington ex rel. Seattle Title Trust Co. v. Roberge, 1928, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210; Berman v. Parker, 1954, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27. Thus in testing the zoning ordinances before us here the sole question is whether there is a rational relationship between. the ordinance and the promotion of some aspect of the City’s police power — a label which describes the full range of legitimate public interests. Mayhue v. City of Plantation, Florida, 5 Cir., 1967, 375 F.2d 447, 449. III. The 150 Foot Requirement We first consider the constitutionality of the 150 foot frontage requirement. Stone claims that it is unconstitutional because (i) it discriminates against corner lot owners in that they must have 150 feet on each of two street sides and in favor of interior lot owners who only need 150 feet on one side and (ii) even though (i) demonstrates “a reasonable relation to permissible objectives which promote the public health," }, { "docid": "4918569", "title": "", "text": "Amendment. Finally, plaintiffs make the relatively novel claim that the zoning ordinance unconstitutionally impinges on the “right to travel”. This right is asserted both as an independent, fundamental right, and as a right derived from the Interstate Commerce Clause of the Constitution. Plaintiffs seek monetary and equitable relief. Defendants’ motion to strike and dismiss has numerous bases. The court is asked to abstain to permit a state court determination of the issues raised. In the alternative, it is argued that plaintiffs lack standing to assert the right to travel claims of prospective residents. The individual defendants resist claims for monetary relief on the grounds of legislative and official immunity. The City, as defendant, is not covered by this ground. Defendants further argue that the relief requested is too intrusive for a federal court to impose upon a municipality, and that in any event, attorneys’ fees are not warranted. CAUSE OF ACTION The Supreme Court has found that a zoning ordinance is unconstitutional only if its provisions are “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare”. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). In sustaining an ordinance which prevented industrial use of certain land, however, the Court recognized “the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way”. Id. at p. 390, 47 S.Ct. at p. 119. The thrust of the complaint in the present case is that Lake Forest’s zoning ordinances are so inimical to the needs of growth of the surrounding region as to be unconstitutional. At this stage of the pleadings there has been no answer as to what, if any, legitimate function the ordinance serves. Defendants cite a number of cases in which zoning ordinances that may have been more restrictive and exclusive than the one here have been upheld as legitimate applications of the police power. Village of Belle Terre v. Boraas, 416 U.S." }, { "docid": "21183924", "title": "", "text": "not provide a service customarily carried on as a business.” Plaintiff admitted that he intended to operate the business four nights a week and for a profit. The rights and necessity for restrictions in municipal zoning ordinances have long been sustained. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). It has also been recognized that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on á trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the Fourteenth Amendment, People of State of New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 26 S.Ct. 144, 50 L.Ed. 305 (1905); and that ordinances validly prohibiting the operation of certain businesses without first obtaining municipal permission do not deprive one of his property without due process of law nor deny one the equal protection of the law, Fischer v. City of St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018 (1904). Plaintiff fails to distinguish between civil rights and natural rights. His civil rights do not authorize the operation of a business within a municipality in violation of ordinances enacted under police power and for the welfare of the community. One has to read but little of the history of our civil rights legislation as well as constitutional amendments adopted to ascertain that our constitutional and statutory civil rights are for the protection of persons against discriminatory legislation or treatment. Here, there is no showing whatsoever of discriminatory treatment. There is only a showing that the Creve Coeur Country Club had on occasion permitted the use of its facilities by fraternal, social, civic and charitable organizations. These operations, however, have no bearing on plaintiff’s cause of action as there is no suggestion that any of them involved a public dance hall business run for profit. Despite plaintiff’s attempts to characterize his operation as a social event, it was a commercial business not permitted under either the zoning" }, { "docid": "4918570", "title": "", "text": "to the public health, safety, morals or general welfare”. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). In sustaining an ordinance which prevented industrial use of certain land, however, the Court recognized “the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way”. Id. at p. 390, 47 S.Ct. at p. 119. The thrust of the complaint in the present case is that Lake Forest’s zoning ordinances are so inimical to the needs of growth of the surrounding region as to be unconstitutional. At this stage of the pleadings there has been no answer as to what, if any, legitimate function the ordinance serves. Defendants cite a number of cases in which zoning ordinances that may have been more restrictive and exclusive than the one here have been upheld as legitimate applications of the police power. Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L.Ed.2d 797 (1974); Citizens Committee for Faraday Wood v. Lindsay, 507 F.2d 1065 (2d Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1679, 44 L.Ed.2d 102 (1975); Acevedo v. Nassau County, New York, 500 F.2d 1078 (2d Cir. 1974). These decisions, however, followed a hearing as to the purpose and effect of the zoning ordinances. None found the purpose alleged here, of limiting the influx of new residents in the community, to be operative. The closest federal case appears to be the Ninth Circuit’s decision in Construction Ind. Ass’n of Sonoma City v. City of Petaluma, 522 F.2d 897 (9th Cir. 1975) which found that a limitation on the rate of growth pursuant to a comprehensive plan was not an abuse of the police power. There is as yet no indication of a comprehensive plan here. See Steel Hill Development, Inc. v. Town of Sanbornton, 469 F.2d 956, 962 (1st Cir. 1972). In any event, these decisions do not foreclose the granting of relief under the allegations of" }, { "docid": "21183923", "title": "", "text": "of the requisite elements necessary for recovery under the Civil Rights Act. They are (1) that defendant was acting under “color of law” and (2) that defendant’s conduct subjected complainant to deprivation of rights, privileges or immunities secured to him by the Constitution and laws of the United States. Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965); Stilt-ner v. Rhay, 322 F.2d 314 (9th Cir. 1963); Marshall v. Sawyer, 301 F.2d 639, 646 (9th Cir. 1962); Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963). Plaintiff does not challenge either the validity of the zoning ordinance or the licensing ordinance, and he has not demonstrated that he has been deprived of any constitutional or statutory right. It may be that the operation of a teenagers’ dance hall business at some other location would be lawful, but plaintiff cannot operate such a business in a location within a municipality validly zoned for the operation of a private club “whose normal use is limited to members of the club and their guests, and which club does not provide a service customarily carried on as a business.” Plaintiff admitted that he intended to operate the business four nights a week and for a profit. The rights and necessity for restrictions in municipal zoning ordinances have long been sustained. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). It has also been recognized that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on á trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the Fourteenth Amendment, People of State of New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 26 S.Ct. 144, 50 L.Ed. 305 (1905); and that ordinances validly prohibiting the operation of certain businesses without first obtaining municipal permission do not deprive one of his property without due process of law nor deny one the equal protection of the law, Fischer v. City of St. Louis, 194" }, { "docid": "7795517", "title": "", "text": "proper exercise of its eminent domain power — compensating the railroads for the damage to their property. They argue, however, that the ordinance is violative of the Fifth Amendment to the United States Constitution and Article 1, Section 13 of the Minnesota Constitution in that it takes the railroads’ property without compensation. Neither constitutional provision interposes a barrier to the imposition of restrictions on the use of private property if a zoning ordinance is enacted pursuant to a valid exercise of the police power. Goldblatt v. Town of Hempstead, 369 U.S. 590, 593, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); City of Marysville v. Standard Oil Co., 27 F.2d 478 (8th Cir. 1928), aff’d, Standard Oil Co. v. Marysville, 279 U.S. 582, 49 S.Ct. 430, 73 L.Ed. 856 (1929); Kiges v. City of St. Paul, 240 Minn. 522, 62 N.W.2d 363, 369-370 (1953); State ex rel. Beery v. Houghton, 164 Minn. 146, 204 N.W. 569, 54 A.L.R. 1012 (1925), aff’d mem., 273 U.S. 671, 47 S.Ct. 474, 71 L.Ed. 832 (1927). The test of whether the enact ment falls within that power is one of reasonableness. The zoning ordinance will be sustained unless its “ * * * provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). Gorieb v. Fox, 274 U.S. 603, 608-609, 47 S.Ct. 675, 71 L.Ed. 1228 (1927); McMahon v. City of Dubuque, Iowa, 255 F.2d 154, 158-159 (8th Cir.), cert. denied, 358 U.S. 833, 79 S.Ct. 53, 3 L.Ed.2d 70 (1958); Naegele Outdoor Adv. Co. v. Village of Minnetonka, 281 Minn. 492, 162 N.W.2d 206, 212 (1968); State ex rel. Howard v. Village of Roseville, 244 Minn. 343, 70 N.W.2d 404, 407 (1955). In reviewing the trial court’s determination of invalidity, we examine the record not to see whether its findings are supported by evidence but to ascertain upon the whole record whether it is possible to say that the legislative choice is without rational basis. South Carolina" }, { "docid": "14518357", "title": "", "text": "RONEY, Circuit Judge: Plaintiff was refused a license to sell alcoholic beverages by the County Commissioners of Clarke County, Georgia, because plaintiff’s property was not located in a district in which liquor sales are permitted by local ordinance. When plaintiff brought suit, the district court decided that the ordinance limiting liquor licenses to certain specified zones was so arbitrary and irrational as to violate the due process and equal protection clauses of the Constitution, and exceeded the police powers of the County. The court enjoined enforcement of the ordinance. We reverse. Regulations pertaining to the sale of alcohol are entitled to special deference when challenged in court. “[T]he broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare and morals.” California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972). Accord Seagram & Sons v. Hostetter, 384 U.S. 35, 42, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966); United States v. Frankfort Distilleries, 324 U.S. 293, 299, 65 S.Ct. 661, 89 L.Ed. 951 (1945); Sandbach v. City of Valdosta, 526 F.2d 1259 (5th Cir. 1976); Parks v. Allen, 426 F.2d 610 (5th Cir. 1970). At the same time, because it supplements a zoning enactment, the ordinance in this case is also entitled to the traditional deference afforded' by the courts to local zoning ordinances. See Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Only a minimal showing of rationality is necessary to enable a liquor zoning ordinance to withstand constitutional attack, because “zoning legislation may be held unconstitutional only if it is shown to bear no possible relationship to the state’s interest in securing the health, safety, morals, or general welfare of the public and is, therefore, manifestly unreasonable and arbitrary.” City of Highland Park v. Train, 519 F.2d 681, 696 (7th Cir. 1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976). The mere fact" }, { "docid": "6076406", "title": "", "text": "In Mosher v. Beirne, 8 Cir., 357 F.2d 638, 640-641, we sustained the dismissal of plaintiff’s action based on 28 U.S.C.A. § 1343, wherein plaintiff claimed a city improperly refused him a license to operate a public dance. We stated: “The rights and necessity for restrictions in municipal zoning ordinances have long been sustained. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 [54 A.L.R. 1016] (1926). It has also been recognized that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the Fourteenth Amendment, People of State of New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 26- S.Ct. 144, 50 L.Ed. 305 (1905); and that ordinances validly prohibiting the operation of certain businesses without first obtaining municipal permission do not deprive one of his property without due process of law nor deny one the equal protection of the law, Fischer v. City of St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018 (1904).” In Garfinkle v. Superior Court of New Jersey, 3 Cir., 278 F.2d 674, the court in affirming the dismissal of an action based on violation of federal constitutional rights concluded, “His stated fundamental facts, irrespective of their fantastic nature, certainly do not show clearly and distinctly that this suit is based on a federal question.” What was said there is fully applicable here. Federal courts have only that jurisdiction which Congress, acting within the limits of the Constitution, confers upon them. “The party invoking the district court’s original jurisdiction has the duty of affirmatively alleging jurisdiction; and, if his allegations are properly controverted, the burden of establishing jurisdiction. Lack of federal jurisdiction may be raised by motion or in the responsive pleading. And ‘whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.’ ” 1" }, { "docid": "13730112", "title": "", "text": "Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). The Supreme Court’s statement in Braunfield accurately summarizes our conclusion about the nature of the Congregation’s interest and the nature of the City’s burden on that interest. The Lakewood ordinance “simply regulates a secular activity and, as applied to the appellants, operates so as to make the practice of their religious beliefs more expensive.” 366 U.S. at 605, 81 S.Ct. at 1146 (emphasis added). It does not pressure the Congregation to abandon its religious beliefs through financial or criminal penalties. Neither does the ordinance tax the Congregation’s exercise of its religion. Despite the ordinance’s financial and aesthetical imposition on the Congregation, we hold that the Congrega tion’s freedom of religion, as protected by the Free Exercise Clause, has not been infringed. The answer to the threshold question is that there is no infringement of religious freedom. Accordingly, the constitutionality of the zoning ordinance must be measured by a due process analysis. The landmark zoning case is Village of Euclid v. Ambler Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). In Euclid the Supreme Court upheld the validity of a comprehensive zoning plan which excluded commercial activities from residential districts. The plan deprived the landowner/plaintiff some freedom to use the land for all purposes. The Court held zoning ordinances to be legitimate exercises of a municipality’s police power if the ordinances are not “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.” 272 U.S. at 395, 47 S.Ct. at 121. The Court also established a legal presumption in favor of constitutionality “[i]f the validity of the legislative classification for zoning purposes be fairly debatable.” 272 U.S. at 388, 47 S.Ct. at 118. Finally, the Euclid Court recognized, “The inclusion of a reasonable margin to insure effective enforcement, will not put upon a law, otherwise valid, a stamp of invalidity.” 272 U.S. at 392, 47 S.Ct. at 120. Subsequent cases have identified a locality’s specific prerogative to create exclusive residential districts for the health and well-being of its citizens." }, { "docid": "14518358", "title": "", "text": "661, 89 L.Ed. 951 (1945); Sandbach v. City of Valdosta, 526 F.2d 1259 (5th Cir. 1976); Parks v. Allen, 426 F.2d 610 (5th Cir. 1970). At the same time, because it supplements a zoning enactment, the ordinance in this case is also entitled to the traditional deference afforded' by the courts to local zoning ordinances. See Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Only a minimal showing of rationality is necessary to enable a liquor zoning ordinance to withstand constitutional attack, because “zoning legislation may be held unconstitutional only if it is shown to bear no possible relationship to the state’s interest in securing the health, safety, morals, or general welfare of the public and is, therefore, manifestly unreasonable and arbitrary.” City of Highland Park v. Train, 519 F.2d 681, 696 (7th Cir. 1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976). The mere fact that the sale of intoxicating liquor is permitted in some zones while it is prohibited in others does not of itself constitute an unconstitutional discrimination against persons residing or property located in the latter. Nor is it a ground of objection to the inclusion of particular premises in a prohibited area that similarly situated premises of the same general character are excluded. Annot., 9 A.L. R.2d 877, 883 (1950). In this case, Clarke County, located in northeast Georgia, contains the city of Athens and unincorporated areas. Because the citizens of Clarke County have voted to permit the sale of alcohol in the County under Georgia’s local option law, see Ga. Code Ann. § 58-1001 et seq. (Supp.1976), the County Commissioners were obliged to devise an orderly mechanism for the issuance of liquor licenses. The Commissioners have no power to completely prohibit the sale of liquor in the County once the voters have decided to permit it. Thomas v. Ragsdale, 188 Ga. 238, 3 S.E.2d 567, 570 (1939). The Commissioners of the County had enacted a" }, { "docid": "6076405", "title": "", "text": "licensing of junk dealers and license fees and then asserts that his business does not fall within any of the categories listed in the ordinance. Later plaintiff refers to Ordinance No. 227 relating to regulating, licensing and license fees for automobile lots, and No. 228 with respect to licensing and license fees for salvage yards, both enacted in 1959. Neither of such ordinances are set out in whole or pertinent part. No ascertainable attack is made on the validity of such ordinances but rather the claim is made that the plaintiff’s business does not fit the classifications covered by the ordinances. It would appear that the questions raised primarily relate to the interpretation of the ordinances and that such questions are questions of state law. Plaintiff does not state what attempt, if any, he made to comply with the licensing ordinances nor make any clear-cut allegation that he made any proper application for a license, and if so, that any basis exists for a determination that the city abused its discretion in withholding a license. In Mosher v. Beirne, 8 Cir., 357 F.2d 638, 640-641, we sustained the dismissal of plaintiff’s action based on 28 U.S.C.A. § 1343, wherein plaintiff claimed a city improperly refused him a license to operate a public dance. We stated: “The rights and necessity for restrictions in municipal zoning ordinances have long been sustained. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 [54 A.L.R. 1016] (1926). It has also been recognized that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the Fourteenth Amendment, People of State of New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 26- S.Ct. 144, 50 L.Ed. 305 (1905); and that ordinances validly prohibiting the operation of certain businesses without first obtaining municipal permission do not deprive one of his property without due process of law" }, { "docid": "10924818", "title": "", "text": "12(b)(6). The procedural due process claim is frivolous. The New York Court of Appeals in Collard v. Incorporated Village of Flower Hill held that the Board was not required to give reasons for its denial. Collard v. Incorporated Village of Flower Hill, supra, 52 N.Y.2d at 604, 439 N.Y.S.2d at 331, 421 N.E.2d at 823. It follows that a hearing was not required to determine the binding effect of the covenant or the interpretation of the consent clause for extending the existing building. No further discussion is necessary concerning the adequacy of the hearing on the request for permission to build a second principal building on lot 12. The substantive due process claim is expressed in the “taking without just compensation” allegation. This claim challenges the authority of the Village of Flower Hill in the manner in which it used its police power. Rogin v. Bensalem Township, 616 F.2d 680 (3rd Cir.1980), cert. denied sub nom. Mark Garner Assoc., Inc. v. Bensalem Township, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981), reviewed the history of zoning regulations under the police power of the state and the limitation on that power imposed by the Constitution. The Rogin court stated that zoning ordinances “are constitutional if they bear a ‘substantial relationship to the public health, safety morals or general welfare.’ ” Id. at 688 (quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926)). The court reviewed the broad scope of the police power under the general welfare clause and quoted from Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102-03, 99 L.Ed. 27 (1954), as follows: “The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balances as well as carefully patrolled.” Rogin v. Bensalem Township, supra, at 688. In further defining the authority of a subdivision of a state to exercise its police power in restricting" }, { "docid": "2402030", "title": "", "text": "to bring waste from the city of Akron to them for disposal. They have not shown that this expectation rises to the level of a legitimate claim of entitlement or other property interest protected by the fifth amendment. Alternatively, accepting the argument of the waste collectors that the ordinance impacts on their ability to dispose of the waste they collect which is part of the traditional property concept of ownership, the Court finds nonetheless that this is not a compensable taking under the fifth amendment. In zoning cases where governmental regulation affects real property interests it is well established that reasonable restrictions imposed for the health, welfare, and safety of the population are not unconstitutional deprivations of property; rather, they have been held to be legitimate exercises of the police power. E. g., Village of Euclid v. Ambler Realty, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). Similarly, in Andrus v. Allard, - U.S. -, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979), the Supreme Court held that a regulation prohibiting the sale of artifacts containing eagle feathers was not a taking for which compensation was required. The Court said that “governmental regulation — by definition — involves the adjustment of rights for the public good. Often this adjustment curtails some potential for the use or exploitation of private property.” Id. at-, 100 S.Ct. at 327. In considering the plaintiffs’ first claim under the due process clause the Court has determined that the ordinance is a proper exercise of the city’s police powers. The Court likewise concludes that the ordinance is not a taking for which compensation must be paid under the fifth amendment. D. State Constitutional Claim The plaintiffs’ final claim is that the' ordinance violates the state constitution. Article XVIII, section 3 of the Ohio Constitution provides: Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." }, { "docid": "7795570", "title": "", "text": "as required by § 360.066.” Id. at 57. A rereading of Jankovich and McCabe strengthens our conviction that the Minnesota Supreme Court will determine the validity of zoning ordinances on the basis of whether the ordinance is a reasonable exercise of the police power. We remain convinced that were it to consider the ordinance passed by the St. Paul City Council in this case, it would hold that it was enacted pursuant to a valid exercise of that power. We have also reviewed United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), and Panhandle Eastern Pipe Line Co. v. State Highway Com., 294 U.S. 613, 55 S.Ct. 563, 79 L.Ed. 1090 (1935), and associated decisions. We do not believe they are controlling here. See, Note, Jet Noise in Airport Areas: A National Solution Required, 51 Minn.L.Rev. 1087 (1967) and 31 Minn.L.Rev. 384 (1947). The petition for rehearing is denied. . Considering a similar question in Bibb v. Navajo Freight Lines, 359 U.S. 520, 523-524, 79 S.Ct. 962, 964, 3 L.Ed.2d 1003 (1959), the Court cited the Barnwell case and there said : “The power of the State to regulate the use of its highways is broad and pervasive. We have recognized the peculiarly local nature of this subject of safety, and have upheld state statutes applicable alike to interstate and intrastate commerce, despite the fact that they may have an impact on interstate commerce. South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177 [58 S.Ct. 510]; Maurer v. Hamilton, 309 U.S. 598 [60 S.Ct. 726, 84 L. Ed. 969]; Sproles v. Binford, 286 U.S. 374 [52 S.Ct. 581, 76 L.Ed. 1167]. The regulation of highways ‘is akin to quarantine measures, game laws, and like local regulations of rivers, harbors, piers, and docks, with respect to which the state has exceptional scope for the exercise of its regulatory power, and which, Congress not acting, have been sustained even though they materially interfere with interstate commerce.’ Southern Pacific Co. v. Arizona, 325 U.S. 761, 783] 65 S.Ct. 1515, 89 L.Ed. 1915], “These safety measures carry a" }, { "docid": "21845308", "title": "", "text": "100 S.Ct. 383, 62 L.Ed.2d 332 (1979) (Congress, in light of the extensive Commerce Clause authority over the Nation’s waters, may prescribe rules governing a private marina so as to assure the public free right of access thereto without involving a “taking” requiring just compensation). See also, Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (upholding a municipal ordinance prohibiting posting of campaign signs on public property — a First Amendment speech exercise — in recognition of the public interest in preventing visual clutter and traffic safety); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); Metromedia, Inc. v. San Diego, 453 U.S. 490, 491, 101 S.Ct. 2882, 2883, 69 L.Ed.2d 800 (1981) (upheld city ordinance prohibiting erection of outdoor advertising displays within City against a First Amendment commercial speech challenge in recognition of governmental goals of safety to motorists and pedestrians and the appearance of the City); Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). A city’s zoning power is a proper exercise of the state police power, Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), and if the zoning ordinance is enacted to protect public health and safety, it is ranked high on the list of zoning objectives possessed by a municipality; there is broad legislative discretion in meeting these ob jectives. 82 Am.Jur.2d, § 45, Zoning and Planning, Public Safety; Traffic; 101A C.J.S., Zoning and planning, § 270; Anno., 95 ALR 2d 724. We hold that, based on the record before us, the district court erred in finding that special circumstances rendered the award of attorney’s fees to appellants unjust. However, we conclude, based on the record and the authorities we have reviewed herein, that plaintiffs-appellants cannot prevail on their § 1983 claim. 42 U.S.C. § 1983 is not an appropriate basis for the relief sought by plaintiffs-appellants. Accordingly, we affirm the district court’s order denying appellants’ request" }, { "docid": "10924819", "title": "", "text": "history of zoning regulations under the police power of the state and the limitation on that power imposed by the Constitution. The Rogin court stated that zoning ordinances “are constitutional if they bear a ‘substantial relationship to the public health, safety morals or general welfare.’ ” Id. at 688 (quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926)). The court reviewed the broad scope of the police power under the general welfare clause and quoted from Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102-03, 99 L.Ed. 27 (1954), as follows: “The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balances as well as carefully patrolled.” Rogin v. Bensalem Township, supra, at 688. In further defining the authority of a subdivision of a state to exercise its police power in restricting land use, the Rogin court quoted from Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974), on what governmental purposes included, as follows: “A quiet place where yards are wide, people are few, and motor vehicles are restricted are legitimate guidelines in a land-use project addressed to familyneeds____ The police power is not confined to elimination of filth, stench and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet reclusion and clean air make the area a sanctuary for people.” Rogin v. Bensalem Township, supra, at 688 (citations omitted) (footnote omitted). Plaintiffs do not allege that the zoning restrictions destroyed the value of their property. They claim a denial of the “right to use its property reasonably” (Comp.Par. 16(b)) and the impairment of the value of the property (Comp.Par. 16(c)) as a result of defendants’ decision to refuse plaintiffs’ request for “permission to alter and extend the existing building.” (Comp.Par. 16). The constitution does not protect" } ]

[ { "docid": "7476048", "title": "", "text": "lawsuit; that process was validly issued and served; that Texas law did not recognize a cause of action for the alleged negligent acts; and that the counterclaim against the SBA was not compulsory and should have first been submitted to the General Accounting Office. Appellants filed notice of appeal from this order on February 5, 1980. On February 19, 1980, the United States moved to dismiss its original cause of action. The motion was granted and the action was dismissed on the same date. No notice of appeal was filed. The appellants filed notice of appeal from the December 7, 1979, order denying joinder and dismissing their counterclaims. Unfortunately, the December 7, 1979, order is an interlocutory order rather than a final order. Johnson v. McDole, 526 F.2d 710 (5th Cir. 1976) (counterclaim); Fowler v. Merry, 468 F.2d 242 (10th Cir. 1972) (motion to join parties); Bush v. United Benefit Fire Ins. Co., 311 F.2d 893 (5th Cir. 1963) (counterclaim). This Court lacks jurisdiction over an appeal from such an order unless the district court judge certifies that there is no just reason for delay and expressly directs entry of the limited judgment in accordance with Fed.R.Civ.Pro. 54(b). The judgment thus lacks the requisite finality to be appealable within the meaning of 28 U.S.C.A. § 1291. Appellants failed to file a notice of appeal from the February 19, 1980, judgment that made the counterclaim dismissal and joinder denial a final and thus appealable decision. Under Fed.R.App.Pro. 4(a), and 28 U.S.C.A. § 2107, this Court lacks jurisdiction to review the final judgment. Nor does that final judgment retroactively validate the premature notice of appeal. See Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166, 1169 (5th Cir. 1978). Despite the more liberal procedural rules for federal courts, when jurisdiction is involved, errors can be fatal. Therefore, this Court finds that it lacks jurisdiction to hear this appeal. APPEAL DISMISSED." } ]

[ { "docid": "17066068", "title": "", "text": "control of ENB. The premise of defendants' position that FOGADE would not have standing to sue on behalf of Corpofin is that FOGADE unlawfully intervened it. So, everything turns on FOGADE’s intervention of Corpofin. Thus, the defendants must show that the alleged confiscation of Corpofin was in violation of international law, not that the plaintiffs’ subsequent and successful attempt to recapture the ENB shares through Corpofin was. As we have already explained, however, the intervention of Corpofin was purely domestic (to Venezuela) in nature, and does not violate international law. Therefore, because FO-GADE’s intervention of Corpofin, upon which Corpofin’s claim to ENB is based, was not in violation of international law, the Second Hickenlooper Amendment does not apply to preclude the application of the act of state doctrine to defendants’ affirmative defenses questioning the standing of plaintiffs to sue because of the alleged illegality of the intervention of Corpofin. Defendants’ final argument about the act of state doctrine is that it should not be applied where, as here, it is raised only as a response or bar to affirmative defenses. That argument is inconsistent with the decision of the Supreme Court in Sabbatino, 376 U.S. at 438-39, 84 S.Ct. at 945-46, upholding application of the act of state doctrine as the basis for dismissing the defendants’ counterclaims against a foreign state, Cuba. The counterclaims challenged the legitimacy of Cuba’s claim of right to the disputed property. Id. at 439, 84 S.Ct. at 946 (“Since the act of state doctrine proscribes a challenge to the validity of the Cuban expropriation decree in this case, any counterclaim based on asserted invalidity must fail.”); see also Empresa Cubana Exportadora De Azucar v. Lamborn & Co., 652 F.2d 231, 239 (2d Cir.1981) (“Depriving a sovereign plaintiff of its act of state defense to counterclaims would be just as arbitrary and unfair as stripping it of its right to invoke any other affirmative defense, such as the statute of limitations or res judicata.”). If the act of state doctrine applies to counterclaims, and we know from Sabbatino that it does, there is no reason it" }, { "docid": "8401215", "title": "", "text": "have been supported by the same evidence nor considered part of the same transaction at issue there. See Whitaker v. Ameritech Corp., 129 F.3d 952, 956 (7th Cir.1997). Second, the defendants did not raise any kind of res judicata defense, and it is clear that such a defense can be waived. Allahar v. Zahora, 59 F.3d 693, 695 (7th Cir.1995). Finally, and most important, Spitz’s present claim arises under ERISA, and thus it falls within the exclusive jurisdiction of the federal courts, 29 U.S.C. § 1132(e)(1). Because Spitz therefore could not have raised his ERISA-based claims in any fashion before the state court, and as the defendant he was not the person who selected the state forum, it is likely that he could not be precluded here. See River Park, Inc. v. City of Highland Park, 184 Ill.2d 290, 234 Ill.Dec. 783, 703 N.E.2d 883, 896 (1998). Our review of the record also assures us that the judgment of the court below was final for purposes of appeal under 28 U.S.C. § 1291. Although the trial court, in its summary judgment order, granted Tepfer and his co-defendants leave to reassert Count II of their amended counterclaim once they effected proper service upon T & S, this loose end did not ultimately deprive the judgment of its finality. The trial court later revisited this portion of its ruling, noting that the defendants never properly named T & S as a party to the lawsuit in the first place, which they should have done by means of a third-party complaint. Accordingly, in an order dated July 23, 1997, the court dismissed Count II of defendants’ amended counterclaim as not properly before it and closed the case. We also note that, although the order granting summary judgment does not directly adjudicate Spitz’s initial request for an injunction prohibiting the defendants from filing frivolous complaints with the Department of Labor, this is because Spitz failed to prosecute it. Spitz’s motion purports to request summary judgment on all allegations in the complaint and counterclaim without reservation, but the specific relief he requests (which would and" }, { "docid": "10319259", "title": "", "text": "plaintiffs’ obligation to pay for the beef. The commercial transaction involved, the beef shipment, has nothing to do with this lawsuit beyond the fact that it gave rise to the debt plaintiffs seek to offset. The basis of this lawsuit is the nationalization of Empacadora, which is a quintessential Government act. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); Empresa Cubana Exportadora, Inc. v. Lamborn & Co., 652 F.2d 231 (2d Cir.1981); Carey v. National Oil Corp., 453 F.Supp. 1097, 1102 (S.D.N.Y.1978), aff’d, 592 F.2d 673 (2d Cir.1979). Plaintiffs cannot transform this governmental dispute into a commercial dispute through the simple expedient of attempting to offset an unrelated commercial debt. Equally unavailing is plaintiffs’ claim that section 1607(c) removes immunity in this case. Plaintiffs recognize that 1607(c), on its face, requires that the lawsuit be brought by the foreign state and that the counterclaim be raised by the defendants to that suit. Despite this seemingly insurmountable obstacle plaintiffs claim that requiring them to wait until actually sued by defendants before pressing their counterclaim “is an obvious attempt to place form over substance.” Plaintiffs fail to realize that in this situation the “form” is the substance. The rationale behind the counterclaim exception is the desire to remove the basic unfairness of the situation in which “[w]e have a foreign government invoking our law but resisting a claim against it which fairly would curtail its recovery. It wants our law, like any other litigant, but it wants our law free from the claims of justice.” National City Bank of New York v. Republic of China, 348 U.S. 356, 361-62, 75 S.Ct. 423, 427-428, 99 L.Ed. 389 (1955); see also House Report at 6622 (§ 1607(c) intended to codify the rule in National City Bank). In this case, however, the Government of Nicaragua had not invoked our law but rather to the extent it is in our courts in this suit it has been forced here by plaintiffs. Until Nicaragua seeks to use the courts of this country the rationale for allowing counterclaims does not" }, { "docid": "22917199", "title": "", "text": "amount or value.” 12 U.S.C. § 1452(f)(2). . The Consent Judgment was entered on November 1, 2001, though it was apparently signed on October 25, 2001. . The Consent Judgment in Verzilli did not by its terms involve a dismissal without prejudice, but the fact that the termination of the litigation was contingent upon the decision of this Court was functionally similar to a dismissal without prejudice. Cf. Verzilli, 295 F.3d at 424 n. 2 (discussing dismissals without prejudice). . Despite the Verzilli rule, we have entertained appellate jurisdiction where the remaining \"without prejudice” claims were effectively barred, thus rendering the judgment final. Thus, for example, in Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3d Cir.1986), cert. denied, 481 U.S. 1070, 107 S.Ct. 2463, 95 L.Ed.2d 872 (1987), we held that appellate jurisdiction existed over an appeal where claims against one party had been dismissed without prejudice because \"the ... statute of limitations had already run as of the time of [the party's] dismissal.\" Id. at 1155 (emphasis in original). We explained that because the plaintiffs “retained no viable cause of action against” the dismissed party, \"we conclude that the dismissal, which was nominally without prejudice, was for our purposes, a final dismissal.” See also GFL Advantage Fund, Ltd. v. Colkitt, 272 F.3d 189, 198-99 n. 3 (3d Cir.2001) (where district court had twice dismissed defendant's counterclaims for lack of specificity, we nonetheless exercised appellate jurisdiction because district court's summary judgment order \"effectively barred” defendant from \"re-filing” the counterclaims based on conclusion that defendant's \"affirmative defenses [to plaintiff’s claims]—which were identical to his counterclaims—failed as a matter of law”). . As it now stands, the Rule 54(b) certification is moot. Since Counts Two and Three have been dismissed with prejudice, Freddie Mac’s action now contains only a disposed-of \"final” claim, and so a Rule 54(b) certification would be irrelevant and unavailable. . At oral argument, counsel apprised us that no such motion was made before the district court. . Given Freddie Mac’s ultimate decision, it is fair to assume that Freddie Mac desired our appellate review sooner rather than" }, { "docid": "17066069", "title": "", "text": "or bar to affirmative defenses. That argument is inconsistent with the decision of the Supreme Court in Sabbatino, 376 U.S. at 438-39, 84 S.Ct. at 945-46, upholding application of the act of state doctrine as the basis for dismissing the defendants’ counterclaims against a foreign state, Cuba. The counterclaims challenged the legitimacy of Cuba’s claim of right to the disputed property. Id. at 439, 84 S.Ct. at 946 (“Since the act of state doctrine proscribes a challenge to the validity of the Cuban expropriation decree in this case, any counterclaim based on asserted invalidity must fail.”); see also Empresa Cubana Exportadora De Azucar v. Lamborn & Co., 652 F.2d 231, 239 (2d Cir.1981) (“Depriving a sovereign plaintiff of its act of state defense to counterclaims would be just as arbitrary and unfair as stripping it of its right to invoke any other affirmative defense, such as the statute of limitations or res judicata.”). If the act of state doctrine applies to counterclaims, and we know from Sabbatino that it does, there is no reason it does not also apply to affirmative defenses. C. THE COUNTERCLAIMS The defendants ask us to reverse the district court’s September 18, 1998 order dismissing 13 of their 15 counterclaims, but we lack jurisdiction to consider that order. See United States v. Taylor, 632 F.2d 530, 531 (5th Cir.1980) (order dismissing counterclaim is interlocutory and appeal cannot be taken until judgment makes dismissal final). We do have jurisdiction over the order granting summary judgment to the plaintiffs on two of their claims, because a proper Rule 54(b) certification and partial final judgment was entered as to that order on July 23, 1998, but none has ever been entered as to the dismissal of the counterclaims. Nor has the district court disposed of the case as a whole. So, there is no final judgment as to the case as a whole. See Beluga Holding, Ltd., v. Commerce Capi tal Corp., 212 F.3d 1199, 1200 (11th Cir. 2000) (\"To be a final judgment, the jucigment must have disposed of all claims as to all parties.\") (footnote omitted). The" }, { "docid": "17066071", "title": "", "text": "action the district court took on July 23, 1999 related only to the summary judgment it had entered on two of the plaintiffs' claims. True, the document is captioned \"Final Judgment,\" but that does not mean that it is a final judgment as to all of the claims and counterclaims in the case. To the extent, if any, that the caption implies judgment over the case as a whole, content counts over caption and the content of the document establishes that it is a Rule 54(b) partial final judgment. The first sentence of the document states: \"The Court, upon making the express determination that there is no just reason for delay, hereby directs entry of partial final judgment pursuant to Rule 54(b).\" It did so only as to two of the plaintiffs' claims. The district court has never directed entry of final judgment as to all the claims and counterclaims in the case, nor has it ever decided all of the claims. The partial final judgment the district court entered on July 23, 1999, does state that, while the court retains jurisdiction to decide certain issues relating to costs and damages under temporary restraining order bonds, \"[a]ll other motions are DENIED as moot.\" But claims are not motions, and most of the plaintiffs' claims against the defendants are still outstanding. Indeed, the fact that the district court felt compelled to proceed under Rule 54(b) evidences that there was no final judgment as to all the claims in the case. Because no final judgment has been entered disposing of all the claims in this case, our appellate jurisdiction is confined to the issues made appealable under Rule 54(b). Those are the issues arising from the summary judgment entered on plaintiffs' reclamation of shares and conversion claims, which we have decided. III. CONCLUSION We AFFIRM the district court's orders granting leave to amend and its order granting partial summary judgment for plaintiffs. We lack jurisdiction to decide any issues arising from the district court's orders relating to the counterclaims. . Plaintiffs initially sought a preliminary injunction preventing the individual defendants from selling" }, { "docid": "12137336", "title": "", "text": "dispute and considerable uncertainty — Dominik ceased to be its lawyer and it asked him to tender his shares to it in accordance with the agreement. He promised that he would do so some time, but he never did, and eventually the company brought this diversity suit, which charges him with breaking the 1968 agreement. It also charges him with committing fraud and violating his fiduciary obligations, the argument here being that Dominik, as the company’s lawyer back in 1968, acted unethically in drafting an agreement unduly favorable to himself and later in promising to tender his shares in accordance with the agreement but never doing so. The complaint seeks an order that Dominik tender his shares. He takes the position that the 1968 agreement expired before he ceased to be the company’s lawyer and that he never acted unethically in the matter, and has counterclaimed. The district court granted summary judgment for Dominik on the company’s complaint and entered final judgment for the company under Fed. R.Civ.P. 54(b), but made no ruling on Domi-nik’s counterclaim. The first and only question we consider is whether we have jurisdiction over the appeal. Rule 54(b) authorizes the district judge “to direct the entry of a final judgment as to one or more but fewer than all of the claims.... ” (A final judgment, of course, is appealable. 28 U.S.C. § 1291.) If none of the claims in Automatic Liquid Packaging’s complaint that are before us is duplicated in Dominik’s counterclaim, the order dismissing the complaint is appeal-able. See Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 9, 100 S.Ct. 1460, 1465, 64 L.Ed.2d 1 (1980). But if complaint and counterclaim contain the same claim, the condition for the entry of a final judgment under Rule 54(b) is not satisfied, and we have no appellate jurisdiction over a decision disposing of just the complaint; for “two claims are not separate for purposes of Rule 54(b) merely because one is in the complaint and the other in the counter complaint.” In re Berke, 837 F.2d 293 (7th Cir.1988); see also National Metalcrafters v." }, { "docid": "17066070", "title": "", "text": "does not also apply to affirmative defenses. C. THE COUNTERCLAIMS The defendants ask us to reverse the district court’s September 18, 1998 order dismissing 13 of their 15 counterclaims, but we lack jurisdiction to consider that order. See United States v. Taylor, 632 F.2d 530, 531 (5th Cir.1980) (order dismissing counterclaim is interlocutory and appeal cannot be taken until judgment makes dismissal final). We do have jurisdiction over the order granting summary judgment to the plaintiffs on two of their claims, because a proper Rule 54(b) certification and partial final judgment was entered as to that order on July 23, 1998, but none has ever been entered as to the dismissal of the counterclaims. Nor has the district court disposed of the case as a whole. So, there is no final judgment as to the case as a whole. See Beluga Holding, Ltd., v. Commerce Capi tal Corp., 212 F.3d 1199, 1200 (11th Cir. 2000) (\"To be a final judgment, the jucigment must have disposed of all claims as to all parties.\") (footnote omitted). The action the district court took on July 23, 1999 related only to the summary judgment it had entered on two of the plaintiffs' claims. True, the document is captioned \"Final Judgment,\" but that does not mean that it is a final judgment as to all of the claims and counterclaims in the case. To the extent, if any, that the caption implies judgment over the case as a whole, content counts over caption and the content of the document establishes that it is a Rule 54(b) partial final judgment. The first sentence of the document states: \"The Court, upon making the express determination that there is no just reason for delay, hereby directs entry of partial final judgment pursuant to Rule 54(b).\" It did so only as to two of the plaintiffs' claims. The district court has never directed entry of final judgment as to all the claims and counterclaims in the case, nor has it ever decided all of the claims. The partial final judgment the district court entered on July 23, 1999, does" }, { "docid": "23438051", "title": "", "text": "the defendants’ counterclaims, it ordered that a trial would be held, “limited to the determination of plaintiffs damages.” Id. at 5. On November 27-28, 2001, a jury trial was held on the issue of damages. The jury awarded the plaintiffs $3,056,527.00 in lost profits damages, and the district court entered judgment against the defendants for this amount. On January 22, 2002, the court granted the plaintiffs’ Motion to Alter or Amend the judgment, and awarded the plaintiffs an additional $123,161.60 in prejudgment interest. In addition to these monetary damages, the district court entered a final injunction against the defendants on November 19, 2001, “preventing defendants from manufacturing, market ing, selling, or shipping any of the defendants’ three-part assembly devices which have been found to infringe plaintiffs’ patent.” Pandrol USA, LP v. Airboss Ry. Prods., Inc., No. 99-0182, order of Nov. 19, 2001 at 1 (W.D.Mo. Nov. 19, 2001). The defendants timely filed this appeal. DISCUSSION I. Jurisdiction and Standard of Review. Even though the parties have raised no objection to our jurisdiction over this appeal, we are obligated to consider whether there is a final judgment of the district court. 28 U.S.C. § 1295(a)(1) (2000); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963, 42 USPQ2d 1956, 1958 (Fed.Cir.1997). If a “case is not fully adjudicated as to all claims for all parties,” there is no “final decision” and therefore no jurisdiction. Syntex Pharm. Int'l, Ltd. v. K-Line Pharm., Ltd., 905 F.2d 1525, 1526, 15 USPQ2d 1239, 1240 (Fed.Cir.1990). A judgment that does not dispose of pending counterclaims is not a final judgment. Id. The issue here is whether the district court disposed of the defendants’ counterclaims, thereby rendering an appealable final judgment. After the district court’s original grant of summary judgment in favor of the defendants, the defendants agreed to dismiss their counterclaims without prejudice, so that there would be an appealable final judgment. The parties stipulated “that the Defendants’ Counterclaims be dismissed without prejudice to Defendants’ right to assert all the defenses recited in its Answers and Counterclaims to Plaintiffs First Amended Complaint, including the" }, { "docid": "22999198", "title": "", "text": "final order dismissing the 1981 action, it appearing that all claims not previously dismissed had been settled or compromised to the satisfaction of the parties. The government now seeks review of the 1984 order entered in the 1981 action. Particularly, the government seeks to reinstate its counterclaim for the unpaid balance of the loan and to proceed to trial. The Livera group filed a motion to dismiss this appeal premised on principles of res judicata. It alleges that the 1986 order dismissing the government’s plenary action was an adjudication on the merits of the government’s counterclaim in the present matter and, accordingly, deprives us of subject matter jurisdiction to hear this appeal. The Livera group’s characterization of the doctrine of res judicata is misplaced. While it is true that res judicata can be applied to bar relitigation of claims previously decided on the merits, res judicata is an affirmative defense and not a doctrine which would defeat subject matter jurisdiction of this court. In any event, although the district court in granting the Livera group’s summary judgment motion in the plenary action referenced the “res judicata” effect of its May 15, 1984 order dismissing the SBA’s counterclaim for failure to prosecute under Fed. R.Civ.P. 41(b), it obviously meant that it had already ruled on the issue and would not do so again in a different posture. The district court’s use of this language has no preclusive effect on us. The May 15, 1984 order was interlocutory and did not become final until the district court entered its order on February 4, 1988 disposing of the 1981 action. The government’s withdrawal of its appeal in the plenary action, which could have been interpreted as a collateral attack on the May 15,1984 order, likewise has no res judicata effect on our consideration of an issue which has now finally “matured” for appealability purposes. We will therefore deny the motion to dismiss for lack of subject matter jurisdiction and proceed to the merits of the appeal. Our jurisdiction is premised on 28 U.S.C. § 1291. When a district court enters its final order" }, { "docid": "18573708", "title": "", "text": "of a bankruptcy court of the United States if the parties to such appeal agree to a direct appeal to the court of appeals. Thus, the court of appeals only has jurisdiction over final judgments, orders or decrees. Interlocutory orders are not appealable as of right. They may be reviewed at the discretion of the district court, 28 U.S.C. § 1334(b), but are not appealable to the court of appeals under 28 U.S.C. § 1293. In re Mason, 709 F.2d 1313, 1315 (9th Cir.1983). This is in accord with the general rule that federal appeals can only be taken from final orders. 28 U.S.C. § 1291; In re Rubin, 693 F.2d 73 (9th Cir.1982). At issue here is whether the decision of the bankruptcy court dismissing count I of the counterclaim and leaving intact the complaint and three counts of the counterclaim is a “final judgment, order, or decree.” This court recently discussed the need to apply the rules of finality flexibly in this area, in light of the unique nature of bankruptcy procedure. In re Mason, 709 F.2d at 1316. See generally, R. Levin, Bankruptcy Appeals, 58 N.C.L.Rev. 967, 985 (1980). However, in this case even the unique nature of a bankruptcy proceeding does not warrant a departure from final order jurisprudence’ developed in the context of 28 U.S.C. § 1291. Appellate jurisdiction is lacking in this case because the bankruptcy court’s order did not dispose of all issues in the adversary proceeding but only dismissed one count of a four-count counterclaim. Neither did the court direct entry of judgment under Fed.R.Civ.P. 54(b) which applies to adversary proceedings in bankruptcy by virtue of Bankruptcy Rule 7054. See In re Adirondack Railway Corp., 726 F.2d 60, 64 (2d Cir.1984) (no jurisdiction to review the interlocutory rulings striking an affirmative defense and granting partial summary judgment in the absence of compliance with Rule 54(b)). Cf Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101 (3d Cir.1981) (jurisdiction existed where bankruptcy court’s order denied all the relief sought in the adversary proceeding); Matter ofLicek Potato Chip Co., 599 F.2d" }, { "docid": "8050261", "title": "", "text": "L.Ed.2d 575 (1999); Molins PLC v. Quigg, 837 F.2d 1064, 1066, 5 USPQ2d 1526, 1527 (Fed.Cir.1988). Under the law of the Eleventh Circuit, we review without deference a district court’s ruling on the issue of sovereign immunity to suit. Fla. Paraplegic Assoc., Inc. v. Miccosukee Tribe of Indians, of Fla., 166 F.3d 1126, 1128 (11th Cir.1999); Tinney v. Shores, 77 F.3d 378, 383 (11th Cir.1996). We review a district court’s grant of summary judgment without deference. Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315, 47 USPQ2d 1272, 1275 (Fed.Cir.1998). II. Jurisdiction/Finality of Judgment Before addressing the merits, we are obligated to consider the issue of our juris diction. Bender v. Williamsport Area Sch. Dist. 475 U.S. 584, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (“[E]very federal appellate court has a special obligation to satisfy itself ... of its own jurisdiction.”) (internal quotations and citations omitted); see also Helfgott & Karas, P.C. v. Dickenson, 209 F.3d 1328, 1333, 54 USPQ2d 1425, 1428 (Fed.Cir.2000). At the time the plaintiffs appealed to this Court, there remained pending in the district court the counterclaims directed toward non-infringement and patent invalidity. Since it appeared that there might be no appeal-able final judgment and no certification pursuant to Fed.R.Civ.P. 54(b), on June 7, 2001, we issued an order directing the parties to address the jurisdictional issue. The parties agreed that the judgment of the district court was not final because of the pending counterclaims and that no Rule 54(b) certification had been entered, but filed in the district court an “Emergency Motion/Request for Certification of Final Order of Summary Judgment for Defendants Pursuant to Rule 54(b).” On June 20, 2001, the district court issued an order granting plaintiffs’ request for a certification of final judgment, State Contracting & Engineering Corp. v. Florida, No. 97-7014-CIV-DIMITROULEAS (S.D. Fla. June 20, 2001) (Order Amending Order of March 2, 2000 and Granting Motion For Certification), stating that “there is no just reason for delay of the appeal of the March 2, 2000 Order,” id., slip op. at 2, and that “the Court intended the March" }, { "docid": "20047332", "title": "", "text": "the court. In Citibank, a U.S. bank sought a setoff for expropriation of its Cuban branches against claims brought against it by the national bank of Cuba. At issue was whether this counterclaim was barred by the act of state doctrine. The court held that on the facts of that case, Citibank's counterclaims were not barred by the doctrine; however, there was no majority opinion. Three members of the 5-4 majority argued that Citibank's claims were justiciable because the Legal Advisor of the Department of State had advised the court that the doctrine need not be applied in this situation. The other six members of the court rejected this so-called “Berstein exception” to the doctrine. Justice Powell argued that the act of state doctrine should only apply where the exercise of jurisdiction would “interfere with delicate foreign relations conducted by the political branches.” Citibank, 406 U.S. 759, 775-776, 92 S.Ct. 1808, 1817. Since he found no such conflict, he concurred in the judgment of the court. Id. The four members of the dissent took issue with each of the foregoing views and would have ruled the counterclaim barred by the doctrine. Thus it is clear that none of the other 8 members of the Court embraced the view of Justice Douglas. Indeed, the more reasonable reading of Citibank is that the “mere set-off” exception to the act of state doctrine was rejected by the Court. Contrary to the position of Varsho-Saz, Empressa Cubana Exportadora, Inc. v. Lamborn & Co., 652 F.2d 231 (2d Cir.1981), is instructive on the issue of the applicability of the act of state doctrine to the setoff defense. The court explicitly held that its analysis was “unaffected by the fact that the claim being barred [by the doctrine] is being asserted both as a counterclaim and as a direct claim.” Empressa, 652 F.2d at 238. The Empressa court explicitly confronted the “counterclaim exception” urged by Varsho-Saz. The court stated: Justice Douglas did on one occasion take the view that the counterclaim exception to sovereign immunity enunciated in Re public of China [National City Bank v. Republic" }, { "docid": "22917200", "title": "", "text": "the plaintiffs “retained no viable cause of action against” the dismissed party, \"we conclude that the dismissal, which was nominally without prejudice, was for our purposes, a final dismissal.” See also GFL Advantage Fund, Ltd. v. Colkitt, 272 F.3d 189, 198-99 n. 3 (3d Cir.2001) (where district court had twice dismissed defendant's counterclaims for lack of specificity, we nonetheless exercised appellate jurisdiction because district court's summary judgment order \"effectively barred” defendant from \"re-filing” the counterclaims based on conclusion that defendant's \"affirmative defenses [to plaintiff’s claims]—which were identical to his counterclaims—failed as a matter of law”). . As it now stands, the Rule 54(b) certification is moot. Since Counts Two and Three have been dismissed with prejudice, Freddie Mac’s action now contains only a disposed-of \"final” claim, and so a Rule 54(b) certification would be irrelevant and unavailable. . At oral argument, counsel apprised us that no such motion was made before the district court. . Given Freddie Mac’s ultimate decision, it is fair to assume that Freddie Mac desired our appellate review sooner rather than later, and was willing to surrender its right to reinstate Counts Two and Three to secure our review. We feel constrained to remind counsel that both their time and the Court's time, as well as judicial resources, would have been conserved by earlier recognition of a “flawed” final order and meaningful consultations between Freddie Mac and its counsel. . The definition of \"your work” in the policy at issue in County of Hudson is identical to the definition contained in the policy in the instant case. . We could have disposed of this issue by Scottsdale's waiver of this argument on appeal. Scottsdale did not raise an objection to the district court's application of estoppel in its initial brief; indeed, Scottsdale made no mention of estoppel until its reply brief. See, e.g., F.D.I.C. v. Deglau, 207 F.3d 153, 169 (3d Cir.2000) (because appellants \"did not raise this issue in their opening brief on appeal[, t]hey have therefore waived it, and we will not address it”). In any event, we are satisfied, as we indicate in" }, { "docid": "17066083", "title": "", "text": "us. . The district court applied the act of state doctrine to reject the defendants' illegal intervention contention in the course of dismissing their counterclaims and did not repeat the analysis in rejecting their affirmative defenses to the plaintiffs' claims. The district court's implicit rejection of those parallel affirmative defenses which raised the same issues must have been on the same basis. In any event, our review is de novo. . In their reply brief, for the first time, defendants appear to argue that even if the Second Hickenlooper Amendment does not apply, the act of state doctrine itself is inapplicable in the circumstances of this case, because that doctrine only applies to acts of foreign governments that are a fait accompli within their own territory. We do not pass on that argument, however, because it was not raised in the defendants' opening brief. See Randolph v. Green Tree Fin. Corp., 244 F.3d 814, 816 (11th Cir.2001) (\" 'We note that issues that clearly are not designated in the initial brief ordinarily are considered abandoned.’ \") (quoting Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir.1995)); United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir.1984) (arguments made for the first time in a reply brief are not properly before the Court). . The counterclaims and the affirmative defenses we addressed in Part II. B.4, supra, overlap to a substantial degree, because both raise act of state doctrine issues. What we have held about the act of state doctrine as it involves the affirmative defenses may, as a practical matter (depending upon whether there are any other counterclaim issues), decide how any future appeal of the dismissal of the counterclaims should be decided. But until there is a final judgment entered on the order dismissing the counterclaims, there can be no appeal of that order." }, { "docid": "8050262", "title": "", "text": "Court, there remained pending in the district court the counterclaims directed toward non-infringement and patent invalidity. Since it appeared that there might be no appeal-able final judgment and no certification pursuant to Fed.R.Civ.P. 54(b), on June 7, 2001, we issued an order directing the parties to address the jurisdictional issue. The parties agreed that the judgment of the district court was not final because of the pending counterclaims and that no Rule 54(b) certification had been entered, but filed in the district court an “Emergency Motion/Request for Certification of Final Order of Summary Judgment for Defendants Pursuant to Rule 54(b).” On June 20, 2001, the district court issued an order granting plaintiffs’ request for a certification of final judgment, State Contracting & Engineering Corp. v. Florida, No. 97-7014-CIV-DIMITROULEAS (S.D. Fla. June 20, 2001) (Order Amending Order of March 2, 2000 and Granting Motion For Certification), stating that “there is no just reason for delay of the appeal of the March 2, 2000 Order,” id., slip op. at 2, and that “the Court intended the March 2, 2000 Order to be final as to all of Plaintiffs’ claims.” Id. The district court also amended the March 2, 2000, order “to add numbered paragraph 12 on page 14, stating: ‘Defendants’ counterclaims in this case are hereby DISMISSED as moot, without prejudice, and may be reinstated in the event the Federal Circuit Court of Appeals reverses or remands this case back to this Court.” Id. at 2-3. By separate order also dated June 20, 2001, the district court ordered that “summary final judgment is hereby entered, nunc pro tunc to March 2, 2000, on behalf of all Defendants as to all counts of Plaintiffs’ amended complaint, and against the Plaintiffs, and Plaintiffs shall take nothing by this action.” State Contracting & Eng’g Corp. v. Florida, No. 97-7014-CIV-DIMITROULEAS (S.D. Fla. June 20, 2001) (Final Summary Judgment). Under these circumstances we conclude that we have jurisdiction because the district court’s order constitutes a final judgment under Rule 54(b). See 10 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2660 (3d ed.1998)." }, { "docid": "23438052", "title": "", "text": "we are obligated to consider whether there is a final judgment of the district court. 28 U.S.C. § 1295(a)(1) (2000); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963, 42 USPQ2d 1956, 1958 (Fed.Cir.1997). If a “case is not fully adjudicated as to all claims for all parties,” there is no “final decision” and therefore no jurisdiction. Syntex Pharm. Int'l, Ltd. v. K-Line Pharm., Ltd., 905 F.2d 1525, 1526, 15 USPQ2d 1239, 1240 (Fed.Cir.1990). A judgment that does not dispose of pending counterclaims is not a final judgment. Id. The issue here is whether the district court disposed of the defendants’ counterclaims, thereby rendering an appealable final judgment. After the district court’s original grant of summary judgment in favor of the defendants, the defendants agreed to dismiss their counterclaims without prejudice, so that there would be an appealable final judgment. The parties stipulated “that the Defendants’ Counterclaims be dismissed without prejudice to Defendants’ right to assert all the defenses recited in its Answers and Counterclaims to Plaintiffs First Amended Complaint, including the defenses of patent invalidity, in the event of an appeal which results in a remand for trial.” (Stipulation of Dec. 6, 1999). The district court then ordered “that the defendants’ counterclaims are dismissed without prejudice and that defendants will be allowed to assert all said counterclaims in the event this matter is remanded for further consideration.” Pandrol, No. 99-0182, order of Dec. 9, 1999. Because the counterclaims had been dismissed, the first appeal to this court was from a final judgment. However, we were advised at oral argument in the present appeal that on remand from this court, no further action was taken to reinstate the counterclaims. Both parties agreed that none was required, and that the counterclaims were automatically reinstated, and were treated as reinstated by both the parties and the district court. Both parties urged as well that the district court disposed of the counterclaims. We agree. After the district court granted summary judgment of infringement, the defendants urged that the issue of patent invalidity remained to be resolved. (Def.’s Br. Re. Fact" }, { "docid": "17066082", "title": "", "text": "the district court's reliance on Gamer. . Actually, the defendants have made this contention in the course of urging us to reverse the district court's dismissal of their counterclaims, some of which were based upon the same illegal intervention theory that is contained in their affirmative defenses. As we will explain later on in this opinion, we lack jurisdiction to review the dismissal of the counterclaim. See Part II. C., infra. Because we do have jurisdiction by virtue of Rule 54(b) to review the summary judgment for plaintiffs on two of the claims, and because the legality of the intervention was raised as an affirmative defense to those claims, we will address it in that context. In other words, we will give the defendants a break and treat the argument in their briefs about the legality of the intervention as though it were asserted against the summary judgment on the claims, as it was in the district court, instead of being asserted solely in support of the counterclaims as it is in the briefs to us. . The district court applied the act of state doctrine to reject the defendants' illegal intervention contention in the course of dismissing their counterclaims and did not repeat the analysis in rejecting their affirmative defenses to the plaintiffs' claims. The district court's implicit rejection of those parallel affirmative defenses which raised the same issues must have been on the same basis. In any event, our review is de novo. . In their reply brief, for the first time, defendants appear to argue that even if the Second Hickenlooper Amendment does not apply, the act of state doctrine itself is inapplicable in the circumstances of this case, because that doctrine only applies to acts of foreign governments that are a fait accompli within their own territory. We do not pass on that argument, however, because it was not raised in the defendants' opening brief. See Randolph v. Green Tree Fin. Corp., 244 F.3d 814, 816 (11th Cir.2001) (\" 'We note that issues that clearly are not designated in the initial brief ordinarily are considered abandoned.’" }, { "docid": "23139294", "title": "", "text": "against Schoenfeld. The issue before us is whether the rule articulated in Ryan v. Occidental Petroleum Corporation, 577 F.2d 298 (5th Cir.1978), and its progeny dictates that we dismiss this case for lack of jurisdiction due to Schoenfeld’s dismissal without prejudice of the claim against Boyd. In Ryan, the former Fifth Circuit held that it lacked jurisdiction to hear an appeal from a district court order dismissing some of the plaintiffs claims with prejudice since the plaintiff had also entered a voluntary dismissal without prejudice of the remaining claims. Ryan, 577 F.2d at 302. The court in Ryan reasoned that the initial district court order was not a final decision because at the time it was issued, there were still claims remaining, and it did not contain the district court certification required by Rule 54(b). Id. at 301-303. The court held that the “successive order” exception articulated in Jeteo did not apply because the subsequent voluntary dismissal did not terminate the litigation between the parties so as to convert the earlier order into an appealable final decision. Id. at 302. The court stated that the litigation had not been effectively terminated at the district court level because the dismissal was without prejudice to the plaintiff refiling the claims at a later time. Id. This circuit has since invoked Ryan in similar situations to conclude that it lacked jurisdiction to hear appeals from nonfinal orders. See Construction Aggregates, Ltd. v. Forest Commodities Corp., 147 F.3d 1334 (11th Cir.1998) (per curiam) (no jurisdiction to review an order granting summary judgment against a party in light of fact that party later voluntarily dismissed its counterclaim without prejudice); Mesa v. United States, 61 F.3d 20 (11th Cir.1995) (no jurisdiction to review a district court’s order dismissing some claims where plaintiff later voluntary dismissed remaining claims without prejudice). The common element in Ryan, Construction Aggregates, and Mesa was that the plaintiff in each case filed a voluntary dismissal without prejudice after the district court entered an adverse, non-final order that did not dispose of the entire case or contain the district court’s requisite Rule 54(b)" }, { "docid": "23139295", "title": "", "text": "final decision. Id. at 302. The court stated that the litigation had not been effectively terminated at the district court level because the dismissal was without prejudice to the plaintiff refiling the claims at a later time. Id. This circuit has since invoked Ryan in similar situations to conclude that it lacked jurisdiction to hear appeals from nonfinal orders. See Construction Aggregates, Ltd. v. Forest Commodities Corp., 147 F.3d 1334 (11th Cir.1998) (per curiam) (no jurisdiction to review an order granting summary judgment against a party in light of fact that party later voluntarily dismissed its counterclaim without prejudice); Mesa v. United States, 61 F.3d 20 (11th Cir.1995) (no jurisdiction to review a district court’s order dismissing some claims where plaintiff later voluntary dismissed remaining claims without prejudice). The common element in Ryan, Construction Aggregates, and Mesa was that the plaintiff in each case filed a voluntary dismissal without prejudice after the district court entered an adverse, non-final order that did not dispose of the entire case or contain the district court’s requisite Rule 54(b) certification. One possible purpose of the plaintiffs voluntary dismissal was to end all proceedings in the district court so that the plaintiff could pursue an immediate appeal of the earlier order. See Ryan, 577 F.2d at 300. As a result, the issue presented was whether a stipulation of voluntary dismissal without prejudice of the remaining claims in a ease could confer finality on an earlier nonfinal district court order that lacked Rule 54(b) certification. See Mesa, 61 F.3d at 22. In this case, Schoenfeld dismissed the claim against Boyd without prejudice before the district court entered the order granting summary judgment and entered a final judg ment. Consequently, the district court order granting summary judgment adjudicated all the claims against all the remaining parties in the action at the time it was entered. There was simply no reason for the district court to even consider including the alternative certification required by Rule 54(b). This situation is, therefore, distinct from the one covered by Ryan, Construction Aggregates, an A Mesa. Although the language in Ryan and" } ]

[ { "docid": "22206889", "title": "", "text": "the wet gas, or of respondent’s net income from the property, the court remanded the case to the Board of Tax Appeals to the end that respondent might supplement its proof and that an allowance for depletion should be made in accordance with the evidence produced. In order to determine whether respondent is entitled to depletion with respect to the production in question, we must recur to the fundamental purpose of the statutory allowance. The deduction is permitted as an act of grace. It is permitted in recognition of the fact that the mineral deposits are wasting assets and is intended as compensation to the owner for the part used up in production. United States v. Ludey, 274 U. S. 295, 302. The granting of an arbitrary deduction, in the case of oil and gas wells, of a percentage of gross income was in the interest of convenience and in no way altered the fundamental theory of the allowance. United States v. Dakota-Montana Oil Co., 288 U. S. 459, 467. The percentage is “of the gross income from the property,”—a phrase which “points only to the gross income from oil and gas.” Helvering v. Twin Bell Syndicate, 293 U. S. 312, 321. The allowance is to the recipients of this gross income by reason of their capital investment in the oil or gas in place. Palmer v. Bender, 287 U. S. 551, 557. It is true that the right to the depletion allowance does not depend upon any “particular form of legal interest in the mineral content of the land.” We have said, with reference to oil wells, that it is enough if one “has an economic interest in the oil, in place, which is depleted by production”; that “the language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital.” Palmer v. Bender, supra." } ]

[ { "docid": "13369545", "title": "", "text": "for $275,000. Relying on Burnet v. Harmel, 287 U.S. 103, 53 S.Ct. 74, 77 L.Ed. 199, and like cases, the United States insists that the $175,000 is taxable as ordinary income subject to the allowance for depletion. The government asserts that, by virtue of the reservation of the so-called “royalty,” the taxpayers retained an “economic interest” in the property. Its position is that, regardless of the circumstances, the effect of reserving or retaining an “economic interest” in a transfer of minerals is that all amounts, including a lump sum payment, received by the transferor constitute ordinary income. The Supreme Court has considered and utilized the concept of an “economic interest” in a number of cases involving mineral properties. E. g., Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747; Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347; Burton-Sutton Oil Co. v. Commissioner, 328 U.S. 25, 66 S.Ct. 861, 90 L.Ed. 1062; Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 66 S.Ct. 409, 90 L.Ed. 343; Anderson v. Helvering, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277; Helvering v. Elbe Oil Land Dev. Co., 303 U.S. 372, 58 S.Ct. 621, 82 L.Ed. 904; Helvering v. O’Donnell, 303 U.S. 370, 58 S.Ct. 619, 82 L.Ed. 903; Helvering v. Bankline Oil Co., 303 U.S. 362, 58 S.Ct. 616, 82 L.Ed. 897; Thomas v. Perkins, 301 U.S. 655, 57 S.Ct. 911, 81 L.Ed. 1324; Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489. Although the issue presented in these cases was uniformly whether the taxpayer was entitled to depletion allowances on periodic payments received by virtue of an interest in mineral producing properties, or, alternatively, whether certain income from mineral production should be attributed to one taxpayer or another, the principle of “economic interest” has been seized upon as dispositive in reaching a correct solution to all problems involving the taxation of transfers of mineral interests. E. G., Laudenslager v. Commissioner, 3 Cir., 305 F.2d 686; Albritton v. Commissioner, 5 Cir., 248 F.2d 49; Hamme v. Commissioner, 4" }, { "docid": "15484490", "title": "", "text": "The effective date of this new Agreement was contingent upon the issuance of a ruling by the Internal Revenue Service that the new contract gave plaintiff a depletable economic interest in the shale. A ruling favorable to the plaintiff was made on October 8, 1957. Until then, plaintiff had not attempted to make deductions for depletion of the shale. In the new Agreement of 1957 plaintiff was granted a sublease on the shale deposits in return for annual rental payments to Simplot. Simplot was to continue to mine both the rock and shale, but was now termed an “independent contractor,” and would receive its mining-costs from plaintiff. In essence, while the terms were altered, the substance of the Agreement remained unchanged. However, this does shed some light on the intent of the parties in their 1947 Agreement, and so will be referred to when “economic interest” is discussed. ECONOMIC INTEREST Whether a taxpayer is to be allowed a deduction for depletion of mineral deposits is entirely a matter of legislative grace. Parsons v. Smith, 359 U.S. 215, 219, 79 S.Ct. 656, 3 L.Ed.2d 747 (1959). The Corporation Tax Law of 1909, 36 Stat. 11, failed to provide for such a deduction and the hardship to mine operators resulting therefrom caused the Congress to make provision for a depletion deduction in the Revenue Law of 1913, 38 Stat. 114. United States v. Ludey, 274 U.S. 295, 302-303, 47 S.Ct. 608, 71 L.Ed. 1054 (1927). This deduction has been continued in all Revenue Acts since then. Commissioner of Internal Revenue v. Southwest Expl. Co., 350 U.S. 308, 312, 76 S.Ct. 395, 100 L.Ed. 347 (1956). The principle underlying the depletion allowance is the “recognition of the fact that the mineral deposits are wasting assets and [the deduction for the depletion] is intended as compensation to the owner for the part used up in production.” Helvering v. Bankline Oil Co., 303 U.S. 362, 366, 58 S.Ct. 616, 618, 82 L.Ed. 897 (1938). This exclusion from gross income “is designed to permit a recoupment of the owner’s capital investment in the minerals so that" }, { "docid": "22867516", "title": "", "text": "under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary,” and that “[i]n the case of leases the deductions shall be equitably apportioned between the lessor and lessee.” And § 114(b) (4) (A) provides that the allowance shall be, “in the case of coal mines, 5 percentum ... of the gross income from [mining] the property during the taxable year, exclud ing . . . any rents or royalties paid or incurred by the taxpayer in respect of the property.” The purpose óf the deduction for depletion is plain and has been many times declared by this Court. “It is permitted in recognition of the fact that the mineral deposits are wasting assets and is intended as compensation to the owner for the part used up in production.”. Helvering v. Bankline Oil Co., 303 U. S. 362, 366. And see United States v. Ludey, 274 U. S. 295, 302; Helvering v. Elbe Oil Land Development Co., 303 U. S. 372, 375; Anderson v. Helvering, 310 U. S. 404, 408; Kirby Petroleum Co. v. Commissioner, 326 U. S. 599, 603. “[The depletion] exclusion is designed to permit a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired.” Commissioner v. Southwest Exploration Co., 350 U. S. 308, 312. Save for its application only to gross income from mineral deposits and standing timber, the purpose of “the deduction for depletion does not differ from the deduction for depreciation.” United States v. Ludey, 274 U. S., at 303. In short, the purpose of the depletion deduction is to permit the owner of a capital interest in mineral in place to make a tax-free recovery of that depleting capital asset. Although the sentence in § 23 (m) that “In the case of leases the deductions shall be equitably apportioned between the lessor and lessee” presupposes “that the deductions may be allowed in other cases” (Palmer v. Bender, 287 U. S. 551, 557), the statute “must be read in the. light of the requirement of apportionment of a" }, { "docid": "22867517", "title": "", "text": "Kirby Petroleum Co. v. Commissioner, 326 U. S. 599, 603. “[The depletion] exclusion is designed to permit a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired.” Commissioner v. Southwest Exploration Co., 350 U. S. 308, 312. Save for its application only to gross income from mineral deposits and standing timber, the purpose of “the deduction for depletion does not differ from the deduction for depreciation.” United States v. Ludey, 274 U. S., at 303. In short, the purpose of the depletion deduction is to permit the owner of a capital interest in mineral in place to make a tax-free recovery of that depleting capital asset. Although the sentence in § 23 (m) that “In the case of leases the deductions shall be equitably apportioned between the lessor and lessee” presupposes “that the deductions may be allowed in other cases” (Palmer v. Bender, 287 U. S. 551, 557), the statute “must be read in the. light of the requirement of apportionment of a single depletion allowance” (Helvering v. Twin Bell Oil Syndicate, 293 U. S. 312, 321), for two or inore persons “cannot be entitled to depletion on the same income” (Commissioner v. Southwest Exploration Co., 350 U. S. 308, 309). It follows that if petitioners áre entitled to a depletion allowance on the amounts earned under their contracts, the amounts allowable to the landowners for the depletion of their coal deposits would be correspondingly reduced. Dealing specifically with the problem of what interests in mineral deposits were permitted a deduction for depletion under the practically identical predecessors of §§23 (m) and 114, this Court said in Palmer v. Bender, 287 U. S. 551, 557: “The language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital.” The Court further said that the" }, { "docid": "22867515", "title": "", "text": "a low in 1944 of $100,000 to a high in 1947 of $500,000. All of the equipment was movable and usable elsewhere in strip mining and some of it was usable for other purposes. Whether a deduction from gross income shall be permitted for depletion of mineral deposits, or any interest therein, is entirely a matter of grace. We therefore must look, first, to the provisions and purposes .pf the statutes and to the decisions'construing them to see what interests are permitted a deduction for depletion, and, next, to the contracts involved to see whether they gave to petitioners, such an interest. The applicable statutes are §§23 (m) and 114 (b) (4) (A) of the Internal Revenue Code of 1939, 26 U. S. C. (1952 ed.). §.23 (m) and 26 U. S. C. (1946 ed.) § 114 (b) (4) (A): Section 23 (m) directs that a reasonable allowance for depletion shall be made “in the case of mines,... according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary,” and that “[i]n the case of leases the deductions shall be equitably apportioned between the lessor and lessee.” And § 114(b) (4) (A) provides that the allowance shall be, “in the case of coal mines, 5 percentum ... of the gross income from [mining] the property during the taxable year, exclud ing . . . any rents or royalties paid or incurred by the taxpayer in respect of the property.” The purpose óf the deduction for depletion is plain and has been many times declared by this Court. “It is permitted in recognition of the fact that the mineral deposits are wasting assets and is intended as compensation to the owner for the part used up in production.”. Helvering v. Bankline Oil Co., 303 U. S. 362, 366. And see United States v. Ludey, 274 U. S. 295, 302; Helvering v. Elbe Oil Land Development Co., 303 U. S. 372, 375; Anderson v. Helvering, 310 U. S. 404, 408;" }, { "docid": "6389282", "title": "", "text": "without personal obligation on the part of the grantor, the owner of that interest acquired an economic interest in the oil in place, subject to the hazards and uncertainties incident to its recovery and therefore subject to depletion under §§ 23(m), 114(b) (3). It is sufficient to say that the boundaries of “depletable interest” under §§ 23 (m), 114(b) (3) are now definitely fixed by the decisions of the Supreme Court of the United States, beginning with Palmer v. Bender, supra, and ending with Anderson v. Helvering, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277. See, also, Helvering v. Twin Bell Oil Syndicate, 293 U.S. 312, 55 S.Ct. 174, 79 L.Ed. 383; Thomas v. Perkins, 301 U.S. 655, 57 S.Ct. 911, 81 L.Ed. 1324; Helvering v. Bankline Oil Co., 303 U.S. 362, 58 S.Ct. 616, 83 L.Ed. 897; Helvering v. O’Donnell, 303 U.S. 370, 58 S.Ct. 619, 82 L.Ed. 903; Helvering v. Elbe Oil Land Development Co., 303 U.S. 372, 58 S.Ct. 621, 82 L.Ed. 904; Helvering v. Mountain Producers Corporation, 303 U.S. 376, 58 S.Ct. 623, 82 L.Ed. 907; Paul & Mertens Law of Federal Income Taxation, Sec. 21.18-20-24. In Helvering v. Bankline Oil Company, supra, the court said [303 U.S. 362, 58 S.Ct. 618, 83 L.Ed. 897] : “In order to determine whether respondent is entitled to depletion with respect to the production in question, we must recur to the fundamental purpose of the statutory allowance. The deduction is permitted as an act of grace. It is permitted in recognition of the fact that the mineral deposits are wasting assets and is intended as compensation to the owner for the part used up in production. * * * It is true that the right to the depletion allowance does not depend, upon any ‘particular form of legal interest in the mineral content of the land.’ We have said, with reference to oil wells, that it is enough if one ‘has an economic interest in the oil, in place, which is depleted by production’; that ‘the language of the statute is broad enough to provide, at least, for" }, { "docid": "12494150", "title": "", "text": "contained in the original 1947 Agreement. The effective date of this new Agreement was contingent upon the issuance of a ruling by the Internal Revenue Service that the new contract gave plaintiff a depletable economic interest in the shale. A ruling favorable to the plaintiff was made oil October 8, 1957. Until then, plaintiff bad not attempted to make deductions for depletion of tbe sbale. In tbe new Agreement of 1957 plaintiff was granted a sublease on tbe sbale deposits in return for annual rental payments to Simplot. Simplot was to continue to mine botb tbe rock and shale, but was now termed an “independent contractor,” and would receive its mining costs from plaintiff. In essence, while the terms were altered, the substance of tbe Agreement remained unchanged. However, this does shed some light on tbe intent of the parties in their 1947 Agreement, and so will be referred to when “economic interest” is discussed. ECONOMIC INTEREST Whether a taxpayer is to be allowed a deduction for depletion of mineral deposits is entirely a matter of legislative grace. Parsons v. Smith, 359 U.S. 215, 219 (1959). The Corporation Tax Law of 1909, 36 Stat. 11, failed to provide for such a deduction and the hardship to mine operators resulting therefrom caused the Congress to make provision for a depletion deduction in the Revenue Law of 1913, 88 Stat. 114. United States v. Ludey, 274 U.S. 295, 302-303 (1927). This deduction has been continued in all Revenue Acts since then. Commissioner v. Southwest Expl. Co., 350 U.S. 308, 312 (1956). The principle underlying the depletion allowance is the “recognition of the fact that the mineral deposits are wasting assets, and [the deduction for the depletion] is intended as compensation to the owner for the part used up in production.” Helvering v. Bankline Oil Co., 303 U.S. 362, 366 (1938). This exclusion from gross income “is designed to permit a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired.” Commissioner v. Southwest Expl. Co., supra, at 312. The reasoning behind" }, { "docid": "14110964", "title": "", "text": "— In the case of the mines, wells, and other natural deposits listed in subsection (b), the allowance for depletion under section 611 shall be the percentage, specified in subsection (b), of the gross income from the property * * * “(b) Percentage depletion rates. —The * * * percentages, referred to in subsection (a) are as follows: * * * “(4) 10 percent * * * coal * * * “(c) Definition of gross income from property. — For the purpose of this section— “(1) Gross income from the property. — The term ‘gross income from the property’ means, in the case of a property other than an oil or gas .well, the gross income from mining. “(2) Mining. — The term ‘mining’ includes not merely the extraction of the ores or minerals from the ground but also the ordinary treatment processes normally applied by mine owners or operators in order to obtain the commercially marketable mineral product or products. * * * “(4) Ordinary treatment processes.- — The term ‘‘ordinary treatment processes’ includes the following: “(A) In the case of coal — cleaning, breaking, sizing, dust allaying, treating to prevent freezing, and loading for shipment.” By this statute, Congress has recognized that mineral deposits are wasting capital assets. Commissioner of Internal Revenue v. I. A. O’Shaugnessy, Inc., 124 F.2d 33, 36 (C.A. 10, 1941); Parsons v. Smith, 359 U.S. 215, 220, 79 S.Ct. 656, 3 L.Ed.2d 747. The deduction for depletion of natural resources is predicated on the theory that capital consumed in the production of gross income ought to be returned tax free. Anderson v. Helvering, 310 U.S. 404, 408, 60 S.Ct. 952, 954, 84 L.Ed. 1277, 1280. The depletion allowance in the ease of coal here is granted as compensation for the exhaustion of the mineral deposit through its severance and sale. Helvering v. Mountain Producers Corp., 303 U.S. 376, 381, 82 L.Ed. 907, 911; Douglas v. Commissioner of Internal Revenue, 322 U.S. 275, 281, 64 S.Ct. 988, 992, 88 L.Ed. 1271, 1277. “Depletion * * * is an allowance for the exhaustion of capital assets,”" }, { "docid": "15484491", "title": "", "text": "U.S. 215, 219, 79 S.Ct. 656, 3 L.Ed.2d 747 (1959). The Corporation Tax Law of 1909, 36 Stat. 11, failed to provide for such a deduction and the hardship to mine operators resulting therefrom caused the Congress to make provision for a depletion deduction in the Revenue Law of 1913, 38 Stat. 114. United States v. Ludey, 274 U.S. 295, 302-303, 47 S.Ct. 608, 71 L.Ed. 1054 (1927). This deduction has been continued in all Revenue Acts since then. Commissioner of Internal Revenue v. Southwest Expl. Co., 350 U.S. 308, 312, 76 S.Ct. 395, 100 L.Ed. 347 (1956). The principle underlying the depletion allowance is the “recognition of the fact that the mineral deposits are wasting assets and [the deduction for the depletion] is intended as compensation to the owner for the part used up in production.” Helvering v. Bankline Oil Co., 303 U.S. 362, 366, 58 S.Ct. 616, 618, 82 L.Ed. 897 (1938). This exclusion from gross income “is designed to permit a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired.” Commissioner of Internal Revenue v. Southwest Expl. Co., supra, 350 U.S. at 312, 76 S.Ct. at 398. The reasoning behind depletion is thus very similar to that supporting deductions for depreciation in other types of property subject to wear and exhaustion. United States v. Ludey, supra, 274 U.S. at 303, 47 S.Ct. 608. Since the depletion deduction was to allow the taxpayer to recover, by the time the mineral was completely exhausted, exactly his investment in the mine, Kirby Petroleum Co. v. Commissioner of Internal Revenue, 326 U.S. 599, 603, 66 S.Ct. 409, 90 L.Ed. 343 (1946), the first few Revenue Acts provided that the depletion allowance was to cease when the total deductions taken over the years added up to a sum equal to the original capital investment. The amount of the depletion deduction for any year was to be “reasonable” and it was left to the Commissioner of Internal Revenue to determine a proper formula. This manner of calculating depletion proved very difficult," }, { "docid": "8672920", "title": "", "text": "The taxpayer contends that he sold the minerals to Star Rock Products and that royalties of $132,051.53 for the period 1959 to 1962 inclusive should be taxed at long-term capital gain rates. The government denies that a “sale” occurred, but asserts that regardless of how one characterizes the transaction, the taxability of the royalties is controlled by the “economic interest” test. Under this test, income from mineral extraction is ordinary income subject to the depletion allowance if the taxpayer retains an “economic interest” in the mineral deposit. Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489 (1933). An “economic interest” is retained whenever the taxpayer has acquired by investment any interest in minerals in place and has obtained, by any legal relationship, income from the extraction of the mineral, to which he must look for a return of his capital. Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347 (1956); 26 C.F.R. § 1.611-U) (b) (1). Here, the taxpayer assigned his right to extract sand and gravel for royalties from future production. Star Rock Products had no obligation to mine any minerals or to pay a minimum royalty. The minerals were the taxpayer’s only source of income, and this income was dependent on future mineral extraction. The taxpayer’s reliance on patent cases in support of his contention that this transfer was a sale entitled to capital gains treatment is misplaced. Congress has recognized the peculiar character of the business of extracting natural resources. Burton-Sutton Oil Co. v. Commissioner of Internal Revenue, 328 U.S. 25, 33, 66 S.Ct. 861, 90 L.Ed. 1062 (1946). Mineral extraction is viewed as an income producing operation and not as a conversion of capital investment. Percentage depletion allows tax-free return of capital consumed through severance of minerals. Anderson v. Helvering, 310 U.S. 404, 407-408, 60 S.Ct. 952, 84 L.Ed. 1277 (1940). This depletion is allowable regardless of cost and depends solely on production. Burton-Sutton Oil Co. v. Commissioner of Internal Revenue, supra at 328 U.S. 34, 66 S.Ct. 861. The taxpayer also asserts that the" }, { "docid": "3074411", "title": "", "text": "which gave rise to the limiting doctrine — Anderson v. Helvering, 310 U.S. 404, note, 60 S.Ct. 952, supra. The grantor owned royalty interests and oil payments and some fee lands. He sold all of these to the grantee. Had he been paid all in cash, it would have been an ordinary capital gains transaction, because he would have kept no interest in the oil. His ownership would have been terminated altogether (see Helvering v. Elbe Oil Land Development Co., 303 U.S. 372, note 3, 58 S.Ct. 621, 82 L.Ed. 904, supra). But the grantor did not do this. The consideration for the purchase was $160,000. This was payable (a) $50,000 in cash, and (b) the balance of $110,000 out of (i) one-half ■of the oil produced on the properties conveyed, and (ii) sale of fee title to the land conveyed. The question was the nature of the deferred balance of $110,000. This was the new interest acquired. It was this “interest” which was a new capital asset, and since that “interest” was payable out of oil and out of the sale of land, the owner would not get his “capital” back solely from extraction and sale of oil. Part would come from sale of lands. But the question is not one of recovering the cost of an interest which has been acquired. It is a question of recovering a part of that interest itself. As originally conceived the depletion allowance was an effort to restore to the mineral owner the value of the mineral in place as of the time of discovery. Administra-five problems were troublesome and Congress substituted the percentage depletion. It is as though Congress declared that of each barrel of oil, 27% per cent of it represents the wasting asset. Parsons v. Smith (Huss v. Smith), 1959, 395 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747. It is that “capital” which the rule speaks about. It is not the expenditure made to obtain that interest that is to be recouped. A donee of a mineral lease under an absolute gift makes no expenditure. He has, however," }, { "docid": "15484492", "title": "", "text": "when the minerals are exhausted, the owner’s capital is unimpaired.” Commissioner of Internal Revenue v. Southwest Expl. Co., supra, 350 U.S. at 312, 76 S.Ct. at 398. The reasoning behind depletion is thus very similar to that supporting deductions for depreciation in other types of property subject to wear and exhaustion. United States v. Ludey, supra, 274 U.S. at 303, 47 S.Ct. 608. Since the depletion deduction was to allow the taxpayer to recover, by the time the mineral was completely exhausted, exactly his investment in the mine, Kirby Petroleum Co. v. Commissioner of Internal Revenue, 326 U.S. 599, 603, 66 S.Ct. 409, 90 L.Ed. 343 (1946), the first few Revenue Acts provided that the depletion allowance was to cease when the total deductions taken over the years added up to a sum equal to the original capital investment. The amount of the depletion deduction for any year was to be “reasonable” and it was left to the Commissioner of Internal Revenue to determine a proper formula. This manner of calculating depletion proved very difficult, and so in the 1926 Act, 44 Stat. 9, a flat allowance of a set percentage of gross income was adopted. Helvering v. Twin Bell Oil Syndicate, 293 U.S. 312, 318, 55 S.Ct. 174, 79 L.Ed. 383 (1934), Kirby Petroleum Co. v. Commissioner of Internal Revenue, supra, 326 U.S. at 603, 66 S.Ct. 409. This fixed manner of calculating depletion deduction has been continued to the present day, even though the resultant deduction is not equal to nor sometimes even related to the capital investment in the mineral deposit. “[T]he taxpayer is not limited to a recoupment of his original investment [today]. The allowance continues so long as minerals are extracted, and even though no money was actually invested in the deposit.” Commissioner of Internal Revenue v. Southwest Expl. Co., supra, 350 U.S. at 312, 76 S.Ct. at 398. The determination of what parties involved in mining operations are entitled to the depletion deduction has become very difficult. The statute in Section 23 (m) calls for an equitable apportionment of the deduction between the lessor" }, { "docid": "10004101", "title": "", "text": "v. United States, 899 F.2d 3, 7 (Fed.Cir.1990). In addition thereto, Exxon must carry its ultimate burden of affirmatively establishing each operative element of its 1975 refund claim by a preponderance of the evidence. Transamerica, 902 F.2d at 1543; Tucker v. United States, 8 Cl.Ct. 180, 186 (1985). Further, it must be remembered that the taxpayer’s burden weighs especially heavy when the merits of its suit for refund hinge upon the claimed entitlement to an income tax deduction. This is clearly so, for it is firmly settled that income tax deductions are a matter of legislative grace and are to be narrowly construed. INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84, 112 S.Ct. 1039, 117 L.Ed.2d 226 (1992); Commissioner v. Sullivan, 356 U.S. 27, 28, 78 S.Ct. 512, 2 L.Ed.2d 559 (1958); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348 (1934); Schuler, 109 F.3d at 755; Iowa Southern Util. Co. v. United States, 841 F.2d 1108, 1113 (Fed.Cir.1988). As the Supreme Court has repeatedly admonished, the foregoing maxim is particularly apposite to the allowance for percentage depletion, which “first came into the tax structure in 1926 and has been consistently regarded as a matter of legislative grace.” Paragon Jewel Coal Co. v. Commissioner, 380 U.S. 624, 631, 85 S.Ct. 1207, 14 L.Ed.2d 116 (1965). See also United States v. Swank, 451 U.S. 571, 577, 579 n. 11, 101 S.Ct. 1931, 68 L.Ed.2d 454 (1981); Parsons v. Smith, 359 U.S. 215, 219, 79 S.Ct. 656, 3 L.Ed.2d 747 (1959); Commissioner v. Southwest Exploration Co., 350 U.S. 308, 312, 76 S.Ct. 395, 100 L.Ed. 347 (1956); Anderson v. Helvering, 310 U.S. 404, 408, 60 S.Ct. 952, 84 L.Ed. 1277 (1940); Helvering v. Bankline Oil Co., 303 U.S. 362, 366, 58 S.Ct. 616, 82 L.Ed. 897 (1938). Moreover, where the taxpayer’s proof depends largely, if not almost exclusively, upon the opinions of its expert witnesses, as in the case at bar, such opinion testimony is not conclusive and binding upon a court sitting as the trier of fact. Dayton Power & Light Co. v. Public" }, { "docid": "14083002", "title": "", "text": "fundamental purposes of the statutory allowance. The deduction Is permitted as an act of grace. The depletion allowance permitted as a deduction from the gross income i-n determining the annual taxable income of mines represents the reduction in the mineral content of the reserves from which the product is taken. The reserves are recognized as wasting assets and the depletion allowance i's intended as a compensation for the part used up in production. United States v. Ludey, 1927, 274 U.S. 295, 47 S.Ct. 608, 71 L.Ed. 1054; Helvering v. Bankline Oil Co., 1938, 303 U.S. 362, 366, 58 S.Ct. 616, 82 L.Ed. 897. The right to depletion allowance does not depend upon the particular legal form of interest enjoyed by the taxpayer in the mineral content of the land. It is sufficient if one, as lessor or lessee, has an “economic interest” in the mineral deposit “in place” which is depleted 'by production. The phna'se “economic interest” is not to be taken as embracing a mere economic advantage derived from production, through a contractual relation to the owner, by one who does not have a capital investment in the mineral deposit. There must exist some element of “ownership” in the mineral deposit “in place” and a right to ■share in its production in order to entitle one to depletion allowance. The mineral deposit “in place” must be a reservoir of capital investment of the taxpayer claiming the allowance. Lynch v. Alworth-Stephens Company, 1925, 267 U.S. 364, 45 S.Ct. 274, 69 L.Ed. 660; Palmer v. Bender, 1933, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489; Thomas v. Perkins, 1937, 301 U.S. 655, 57 S.Ct. 91, 1, 81 L.Ed. 1324. The principles stated were applied in several cases in which the fact situations were strikingly analogous to that here. In Helvering v. Bankline Oil Co., supra, the taxpayer entered into contracts with oil producers for the treatment of wet gas by the extraction of gasoline. Natural gas, commonly known as “wet gas”, as it flows from the earth is not a salable commodity. It is only through processing— by separation of" }, { "docid": "3523296", "title": "", "text": "He found that, although some of the criteria favored the conclusion that taxpayers did acquire such an economic interest, the more important criteria required the conclusion that taxpayers acquired only an economic advantage. He, therefore, held that taxpayers were not entitled to a depletion deduction. D.C., 152 F.Supp. 111. The basic principles underlying the allowance of a deduction for depletion were first stated in Lynch v. Alworth-Stephens Co., 267 U.S. 364, 365, 45 S.Ct. 274, 69 L.Ed. 660, and were restated by Mr. Justice Brandeis in United States v. Ludey, 274 U.S. 295, 47 S.Ct. 608, 71 L.Ed. 1054: “The depletion charge permitted as a deduction from the gross .income in determining the taxable income of mines for any year represents the reduction in the mineral contents of the reserves from which the product is taken. The reserves are recognized as wasting assets. The depletion effected by operation is likened to the using up of raw material in making the product of a manufacturing establishment.” 274 U.S. at page 302, 47 S.Ct. at page 610. At finest the depletion deduction was a certain percentage of cost. It was discovered, however, that cost was frequently so low that it did not adequately reflect the value of the assets, and the law was amended to permit the deduction to be based on the value of the property at the time the mineral was discovered. It was then found that it was very difficult to determine the extent of the mineral deposits and the consequent value of the asset, and since 1926 Congress has permitted an alternative depletion deduction, namely, a fixed percentage of the annual receipts from sale of the minerals. Despite these changes in the method of calculating the depreciation deduction, the basic purpose of its allowance has not changed. United States v. Dakota-Montana Oil Co., 288 U.S. 459, 467, 53 S.Ct. 435, 77 L.Ed. 893; Helvering v. Bankline Oil Co., 303 U.S. 362, 363, 366-367, 58 S.Ct. 616, 82 L.Ed. 897; Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 312, 76 S.Ct. 395, 100 L.Ed. 347. The" }, { "docid": "5853235", "title": "", "text": "every case in which the taxpayer has [1] acquired by investment any interest in mineral in place * * * and [2] secures, by any form of legal relationship, income derived from the extraction of the mineral * * *, to which he must look for a return of his capital. Treas.Reg. § 1.611-1 (b) (1) (1960). The first part of the test assumes importance where a taxpayer claims proceeds of a transaction are ordinary income thus entitling him to use the depletion deduction to recover his capital investment. See, e. g., Helvering v. Bankline Oil Co., 303 U.S. 362, 58 S.Ct. 616, 82 L.Ed. 897 (1938) ; Helvering v. O’Donnell, 303 U.S. 370, 58 S.Ct. 619, 82 L.Ed. 903 (1938) ; Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347 (1956). The second part of the test is critical in situations like the present one where the taxpayer claims to have divested himself of his economic interest by means of a capital sale and seeks to treat the proceeds as long term capital gain. Whether taxpayer is entitled to capital gain treatment or the depletion allowance depends on whether or not he has retained an “economic interest” in the mineral in place. A taxpayer claiming that he has retained an economic interest, entitling him to the advantages of the depletion deduction must show that he looks solely to extraction of the mineral for a return of his capital. Commissioner of Internal Revenue v. Southwest Exploration Co., supra; see Anderson v. Helvering, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277 (1940) ; Helvering v. Elbe Oil Land Co., 303 U.S. 372, 58 S.Ct. 621, 82 L.Ed. 904 (1938). Conversely, where a taxpayer can look only to extraction for a return of his capital, it cannot be said that he has divested himself of his economic interest in the mineral in place. Wood v. United States, 377 F.2d 300 (5th Cir. 1967) , cert. denied, 389 U.S. 977, 88 S.Ct. 465, 19 L.Ed.2d 472 (1967). The economic interest concept was enunciated and" }, { "docid": "3074417", "title": "", "text": "its credit for over $5,000,000 to enable all parties fully to exploit and develop a rich gas field. Without its contribution of credit, money and operation, this production would not have occurred. La Gloria’s connection with it is direct, immediate and substantial. Its money, its efforts, its talents, its energies have helped to exploit, develop and produce gas. That is one of the aims of the statutory depletion, and it should be encouraged, not thwarted. I therefore respectfully dissent. . Sneed, The Economic Interest — An Expanding Concept, 35 Tex.L.Rev. 307-56 at 307 (1956). This traces in elaborate detail the complete historical development of the economic interest doctrine as well as a critical analysis and evaluation of the factors comprising it. . Breeding & Burton, Taxation of Oil & Gas Income 28 (1954). . Commissioner of Internal Revenue v. Southwest Exploration Co., 1956, 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347; Burton-Sutton Oil Co. v. Commissioner, 1946, 328 U.S. 25, 66 S.Ct. 861, 90 L.Ed. 1062; Kirby Petroleum Co. v. Commissioner, 1946, 326 U.S. 599, 66 S.Ct. 409, 90 L.Ed. 343; Anderson v. Helvering, 1940, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277; Helvering v. Mountain Producers Corp., 1938, 303 U.S. 376, 58 S.Ct. 623, 82 L.Ed. 907; Helvering v. Elbe Oil Land Development Co., 1938, 303 U.S. 372, 58 S.Ct. 621, 82 L.Ed. 904; Helvering v. O’Donnell, 1938, 303 U.S. 370, 58 S.Ct. 619, 82 L.Ed. 903; Helver- ing v. Bankline Oil Co., 1938, 303 U.S. 362, 58 S.Ct. 616, 82 L.Ed. 897; Thomas v. Perkins, 1937, 301 U.S. 655, 57 S.Ct. 911, 81 L.Ed. 1324; Helvering v. Twin Bell Oil Snydicate, 1934, 293 U.S. 312, 55 S.Ct. 174, 79 L.Ed. 383; Herring v. Commissioner, 1934, 293 U.S. 322, 55 S. Ct. 179, 79 L.Ed. 389; Murphy Oil Co. v. Burnet, 1932, 287 U.S. 299, 53 S.Ct. 161, 77 L.Ed. 318; Burnett v. Harmel, 1932, 287 U.S. 103, 53 S.Ct. 74, 77 L.Ed. 199; Lynch v. Alworth-Stephens Co., 1925, 267 U.S. 364, 45 S.Ct. 274, 69 L.Ed. 660. The last three cases, though really pre-“eeonomic interest” cases," }, { "docid": "17912750", "title": "", "text": "presented by the taxpayers, and on which the Tax Court denied them their claim, has to do with the depletion allowance in coal mining operations. The statute provided for a five per cent annual depletion deduction in coal mining eases. The theory of the depletion allowance has been stated many times by many courts and is summed up by Mr. Justice Whittaker in Parsons v. Smith, 1959, 359 U.S. 215, 220, 79 S.Ct. 656, 660, 3 L.Ed.2d 747, quoting from former opinions. The depletion deduction “ ‘is permitted in recognition of the fact that the mineral deposits are wasting assets and is intended as compensation to the owner for the part used up in production.’ * * * In short, the purpose of the depletion deduction is to permit the owner of a capital interest in mineral in place to malee a tax-free recovery of that depleting capital asset.” Often it is the stripper who claims the depletion deduction or part of it. This Court had that situation in Parsons v. Smith, 3 Cir., 1958, 255 F.2d 595, affirmed 1959, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747, and Huss v. Smith, 3 Cir., 1958, 255 F.2d 599, affirmed, 1959, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747. In the instant case the coal owner, by which we mean Denise who had the legal right to have the coal strip mined, is claiming the depletion allowance. The record does not show that the strippers have made any such claim. Both stripper and owner may not have this depletion allowance. The Commissioner seems to take the position of opposing either party who demands it. This was the case in Commissioner of Internal Revenue v. Southwest Exploration Co., 1956, 350 U. S. 308, 76 S.Ct. 395, 100 L.Ed. 347, in which the Commissioner had opposed both parties and lost to both in the lower courts but succeeded in getting the Supreme Court to allow it to only one. The test of the validity of the strippers’ claim to the allowance as worked out in the statute, regulations and decisions is" }, { "docid": "14110965", "title": "", "text": "the following: “(A) In the case of coal — cleaning, breaking, sizing, dust allaying, treating to prevent freezing, and loading for shipment.” By this statute, Congress has recognized that mineral deposits are wasting capital assets. Commissioner of Internal Revenue v. I. A. O’Shaugnessy, Inc., 124 F.2d 33, 36 (C.A. 10, 1941); Parsons v. Smith, 359 U.S. 215, 220, 79 S.Ct. 656, 3 L.Ed.2d 747. The deduction for depletion of natural resources is predicated on the theory that capital consumed in the production of gross income ought to be returned tax free. Anderson v. Helvering, 310 U.S. 404, 408, 60 S.Ct. 952, 954, 84 L.Ed. 1277, 1280. The depletion allowance in the ease of coal here is granted as compensation for the exhaustion of the mineral deposit through its severance and sale. Helvering v. Mountain Producers Corp., 303 U.S. 376, 381, 82 L.Ed. 907, 911; Douglas v. Commissioner of Internal Revenue, 322 U.S. 275, 281, 64 S.Ct. 988, 992, 88 L.Ed. 1271, 1277. “Depletion * * * is an allowance for the exhaustion of capital assets,” United States v. Cannelton Sewer Pipe Co., 364 U.S. 76, 86, 80 S.Ct. 1581, 1586-1587, 4 L.Ed.2d 1581. Percentage depletion is based upon a fixed percentage of the income realized during the tax year from the severance of minerals from a piece of property. Dragon Cement Company v. United States, 244 F.2d 513, 514 (C.A. 1, 1957), cert. denied, 355 U.S. 833, 78 S.Ct. 50, 2 L.Ed. 2d 45. The fixing of the 10 percent depletion allowance in the case of coal and the varying percentages applicable to other minerals represents a Congressional effort to approximate general fairness in treating income from wasting assets. The determination of such respective percentages was no doubt the product of practical and scientific consideration of what percentage of the gross proceeds of the severed minerals might fairly be allocated as compensation for the exhaustion of their unsevered and capital worth. Impossibility of arriving at formulae that would be demonstrably accurate in all cases resulted in adoption of figures which, though in a measure arbitrary, had bases in considered judgment." }, { "docid": "12494151", "title": "", "text": "of legislative grace. Parsons v. Smith, 359 U.S. 215, 219 (1959). The Corporation Tax Law of 1909, 36 Stat. 11, failed to provide for such a deduction and the hardship to mine operators resulting therefrom caused the Congress to make provision for a depletion deduction in the Revenue Law of 1913, 88 Stat. 114. United States v. Ludey, 274 U.S. 295, 302-303 (1927). This deduction has been continued in all Revenue Acts since then. Commissioner v. Southwest Expl. Co., 350 U.S. 308, 312 (1956). The principle underlying the depletion allowance is the “recognition of the fact that the mineral deposits are wasting assets, and [the deduction for the depletion] is intended as compensation to the owner for the part used up in production.” Helvering v. Bankline Oil Co., 303 U.S. 362, 366 (1938). This exclusion from gross income “is designed to permit a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired.” Commissioner v. Southwest Expl. Co., supra, at 312. The reasoning behind depletion is thus very similar to that supporting deductions for depreciation in other types of property subject to wear and exhaustion. United States v. Ludey, supra, at 303. Since the depletion deduction was to allow the taxpayer to recover, by the time the mineral was completely exhausted, exactly his investment in the mine, Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 603 (1946), the first few Keve-nue Acts provided that the depletion, allowance was to cease when the total deductions taken over the years added up to a sum equal to the original capital investment. The amount of the depletion deduction for any year was to be “reasonable” and it was left to the Commissioner of Internal Eevenue to determine a proper formula. This manner of calculating depletion proved very difficult, and so in the 1926 Act, 44 Stat. 9, a flat allowance of a set percentage of gross income was adopted. Helvering v. Twin Bell Oil Syndicate, 293 U.S. 312, 318 (1934), Kirby Petroleum Co. v. Commissioner, supra, at 603. This fixed manner of" } ]

[ { "docid": "7978965", "title": "", "text": "amount so assessed and conceded by it to be correct, but four years later it brought this suit. It now challenges the assessment and the collection made under it, because the Commissioner did not notify it that it had the right to appeal within 60 days from the date of final determination of the deficiency to the Board of Tax Appeals, and made the assessment before ,the expiration of the time allowed for an appeal. The Revenue Act of 1924 in section 274 (a), 26 USCA § 1048 note, requires the Commissioner, if he determines that there is a deficiency in respect of income taxes, except in the case of a jeopardy assessment, to notify the taxpayer, and allows to the taxpayer 60 days after notice within which to appeal to the Board of Tax Appeals. It is provided in subdivision (b) of the same section, 26 USCA § 1049' note, that upon determination by the Board that there is a deficiency, the amount thereof shall be assessed by the Commissioner and shall be paid by the taxpayer upon notice and demand from the collector of internal revenue. The statute does not provide that the Commissioner shall notify the taxpayer of his right of appeal, although a regulation of the Treasury Department does contain such a provision. The failure of the Commissioner to so notify the taxpayer and the assessment of the tax within the 60 days allowed -for appeal are at the most mere irregularities in procedure of which the taxpayer after he has paid the tax cannot complain. A taxpayer is presumed to know the law, and therefore appellant knew without being told by the Commissioner that it had the right of appeal. But all other questions aside, appellant is not entitled to recover, because admittedly it owed the tax which it paid. This is an action in the nature of a suit for money had and received. It is governed by equitable principles, and, in order to maintain it, appellant must show that appellee has money in his hands which in equity and good conscience he ought" } ]

[ { "docid": "22840141", "title": "", "text": "addressee of the letter. Rather, it permitted the use of a method of giving notice that would ordinarily result in such receipt. Failure to petition the Board of Tax Appeals (now the Tax Court) within 90 days of the mailing of the letter does deprive the taxpayer of a privilege, namely, withholding payment of the tax pending determination of the validity and correctness of the 'assessment by the Board (Tax Court) (§ 272(a)), and litigating the matter before the Board (Tax Court). (See Ginsburg v. United States, 1 Cir., 1960, 278 F.2d 470.) But it does not deprive him of all right to contest the validity or correctness of the assessment; he can still do this by paying the tax, filing a claim for refund, and if that be denied, suing in the District Court or Court of Claims, (e. g. Van Antwerp v. United States, 9 Cir., 1937, 92 F.2d 871). And if he wins, he gets his money back, normally, with interest. We have no doubt that the Congress, if it chose to do so, could have required the taxpayer to pay first and then litigate, in all cases. (Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289, 1931) Particularly because this is so, we find no constitutional weakness in the use of the authorized method of sending the 90-day letter, even in those cases where it may not actually be received. The cases cited by appellant (Mullane v. Central Hanover Bank & Trust Co., 1950, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178) deal with the cutting off of all rights, not of one of two alternative remedies provided to the taxpayer by the Congress as a matter of grace. The statute, however, requires a proper giving of notice. (§ 272(a)). We think that the letters relating to the years 1945-7 and 1948 were in fact and in law sent to Cohen's “last known address.” The Commissioner normally deals with a taxpayer who has a residence or other address" }, { "docid": "1331499", "title": "", "text": "deficiency in respect to tax exists, shall send the taxpayer notice of the deficiency by registered mail, and thereupon the taxpayer shall have sixty days within which to appeal to the Board of Tax Appeals for a redetermination of the deficiency, and in ease of appeal no action shall be taken pending the decision of the Board. Section 280 (a) prescribes the same procedure in respect to the liability of a transferee- of property of a taxpayer as is provided in regard to the taxpayer. The complainant alleges that the Commissioner, in the assessment of the tax and the levy upon its property, has not obeyed the statute, in that he sent no sixty-day notice to complainant of the deficiency assessment for which he now proposes to hold complainant liable. It asserts that the notice sent to the Pittsburgh Terminal Railroad & Coal Company, one of two corporations whose merger resulted in complainant’s corporate existence, was a notice sent to a nonexistent corporation, and was not the notice to complainant required by statute before the Commissioner could proceed to the collection of the tax claimed by him. The objection raised by complainant to the procedure in the instant matter is quite technical, and we do not attribute to it the weight claimed by the complainant. The Pennsylvania merger statute to which complainant owes its corporate existence enacts that all debts not of record, duties, and liabilities of each of the merged corporations shall attach to the new corporation after merger, and may be enforced as if contracted by it. There is, in fact, no contention that complainant is not ultimately liable for the amount of the tax legally due from its constituent corporations. It received notice of the assessment of a deficiency tax for which it knew it was liable, accepted that notice as applying to it, and appealed to the Board of Tax Appeals, thus delaying the collection of the tax for five years. Having accepted the notice as its own, and having so acted pursuant to that acceptance, it may not now be allowed to deny notice for" }, { "docid": "8957811", "title": "", "text": "section 274(a) of the Revenue Act of 1926 (44 Stat. 55) was in force. This section provided that: “If in the case of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this title, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within 60 days after such notice is mailed, * * * the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency. Except as otherwise provided in subdivision (d) or (f) of this section or in section 279, 282, or 1001, no assessment of a deficiency in respect of the tax imposed by this title and no distraint or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such 60-day period, nor, if a petition has been filed with the Board, until the decision of the Board has become final.” So, when the collector seized the money here in question, he exceeded his authority and collected it illegally. The same argument as the Commissioner made in this case was made by the government on facts almost identical with those here involved in the case of United States ex rel. Dascomb et al. v. Board of Tax Appeals of the United States, supra, but the Court of Appeals of the District of Columbia rejected it, and we think its conclusion is sound. If the taxpayer had admitted that it owed the money, but refused to pay merely because it did not receive notice by registered letter of the Commissioner’s determination after considering its protest, it could not prevail. Thomaston Cotton Mills v. Rose (C.C.A.) 62 F.(2d) 982. But it protests that it does not owe the taxes, that it is entitled to a special assessment of its taxes, and that, if so assessed, it would be determined that nothing is due the government. The Board of Tax Appeals alone, under the facts of this case, has jurisdiction to review" }, { "docid": "13033395", "title": "", "text": "the Congress, when it “authorized” service by registered mail, did not intend to require actual receipt by the addressee of the letter. Rather, it permitted the use of a method of giving notice that would ordinarily result in such receipt. Failure to petition the Board of Tax Appeals (now the Tax Court) within 90 days of the mailing of the letter does deprive the taxpayer of a privilege, namely, withholding payment of the tax pending determination of the validity and correctness of the assessment by the Board (Tax Court) (§ 272(a)), and litigating the matter before the Board (Tax Court). (See Ginsburg v. United States, 1 Cir., 1960, 278 F. 2d 470.) But it does not deprive him of all right to contest the validity or correctness of the assessment; he can still do this by paying the tax, filing a claim for refund, and if that be denied, suing in the District Court or Court of Claims, (e.g. Van Antwerp v. United States, 9 Cir., 1937, 92 F. 2d 871.) And if he wins, he gets his money back, normally, with interest. We have no doubt that the Congress, if it chose to do so, could have required the taxpayer to pay first and then litigate, in all cases. (Phillips v. Commissioner, 283 U.S. 589, 51 S. Ct. 608, 75 L.Ed. 1289, 1981.) Particularly because this is so, we find no constitutional weakness in the use of the authorized method of sending the 90-day letter, even in those cases where it may not actually be received. See and compare Boren v. Riddell, 241 F. 2d 670 (C.A. 9, 1957); Dolezilek v. Commissioner, 212 F. 2d 458 (C.A.D.C., 1954); Eppler v. Commissioner, 188 F. 2d 95 (C.A. 7, 1951); and tbe recent case of DeWelles v. United States, 378 F. 2d 37 (C.A. 9, 1967). We likewise reject the estoppel arguments advanced by petitioner for the reasons previously stated. There is no merit in invoking the doctrine of estoppel against the Commissioner under these circumstances. II Nest we turn to petitioner’s alternative contention that the provisions of Public Law 89-332," }, { "docid": "23646409", "title": "", "text": "fashion the millions of returns to be filed with the district directors within its realm. The Code does not require a check with a service center for verification of the “last known address” of a taxpayer prior to the issuance of a statutory notice. * * * Our confidence in this result is bolstered by the fact that in using the Drawer E address the Commissioner actually provided petitioner with prompt and fair notice of the deficiencies. Cf. Richard A. Zaun, 62 T.C. 278 (1974). Notice is the gist of the statute. As was stated in Boren v. Riddell, 241 F. 2d 670, 673-674 (C.A. 9): Here the essential purpose of the statute was accomplished. The rights of the taxpayer were protected. He received actual notice in sufficient time to petition the Tax Court to stay the levy and distraint, had he desired so to do. He chose not to do so, and he cannot now complain of an alleged technical deficiency which deprived him of no rights. We find that the Commissioner mailed the notices of deficiency to petitioner at its last known address and satisfied the requirements of section 6212(b) (1). The deficiency notices so sent were valid. Petitioner has failed to file its petitions herein within 90 days of the date of such mailing, and has thus not fulfilled the jurisdictional requirement of this Court. We must therefore grant the Commissioner’s motion to dismiss both petitions for lack of jurisdiction. Appropriate orders wiU be entered granting respondent's motions to dismiss the petitions. Sec. 6212 provides in relevant part : SEC. 6212. NOTICE OP DEFICIENCY. (a) In General. — If the Secretary or Ms delegate determines that títere is a deficiency in respect of any tax imposed by subtitle A or B or chapter 42, he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail. (b) Address for Notice of Deficiency. — i (1) Income and gift taxes and taxes imposed bx chapter 42. — In the absence of notice to the Secretary or his delegate under section 6903 of" }, { "docid": "4715699", "title": "", "text": "Baseball Club (C. C. A. 8) 42 F.(2d) 984; Rose v. Grant (C. C. A. 5) 39 F.(2d) 340; Alameda Investment Co. v. McLaughlin (C. C. A. 9) 33 F.(2d) 120; Holmes on Federal Income Tax (6th Ed.) 1278.” (Italics ours.) The doctrine of estoppel is invoked and commented upon in the case of Pittsburgh Terminal Coal Corporation v. Heiner (D. C.) 56 F.(2d) 1072, 1076, Prentice-Hall, 1932, pp. 664, 667. The district judge, in delivering the opinion of the court, said: “In our opinion, the notice given by the Commissioner in the instant matter was a sufficient compliance with section 274 (a) of the Act of 1926 (26 USCA § 1048). But, even if we were to admit error in this respect, it still would seem thaktlie complainant is in no position to appeal to a court of equity. By filing its petition for review it affirmed the sufficiency of the notice as to itself. It maintained that position for five years and thus delayed the Commissioner in the collection of the tax due for that period. Had it not filed its petition for review after the notice, or even had it asserted its mistake in filing it within, a reasonable time after doing so, the complainant’s bill, looking at it only from the standpoint of the equities involved, would have had considerably more weight than at present, but after accepting the notice as sufficient, and thus disarming the Commissioner, and then delaying for a period of five years before alleging the insufficiency of the notice, it plainly should be held to he estopped from assuming a new position and so obtaining further delay.” We desire also to call attention to the opinion of the Supreme Court in Lewis v. Reynolds, 284 U. S. 281, 52 S. Ct. 145, 146, 76 L. Ed. 293, with reference to a matter which has not been presented. In that ease, an assessment was made, after the expiration of the period of limitations, of an income tax upon the property of an estate in charge of an administrator, and upon this tax the" }, { "docid": "19272491", "title": "", "text": "the taxpayer, it may be lost 'by failure seasonably to assert it. It is well settled that a statutory provision may be waived by one for whose benefit it was enacted or intended and such a waiver may as effectively be accomplished negatively by failure timely to invoke the remedy given or positively by an express consent. In legal contemplation the one is as effective as the other. The ■court must attach to the conduct of the taxpayer consequences consistent with the obvious policy underlying section \"274 (a). If the taxpayer does not pursue the remedy given 'him to prevent collection until the procedure outlined in the ■statute with reference to appeal to the Board of Tax Appeals is completed, he cannot afterwards complain. In the case at bar the assessment of the deficiencies for 1918 and 1919 was premature since the assessment list ■sent to the collector by the Commissioner was signed before \"the expiration of the period of sixty days following the 'mailing of the deficiency notice, but their payment was 'timely and legal inasmuch as plaintiff did not file a petition with the Board of Tax Appeals and payment was not made ■until after the expiration of such sixty-day period. The -collector made no demand for payment of the tax and took no steps to require the taxpayer to pay any portion thereof until after the expiration of the sixty days from the mailing of the deficiency notice. The credit entries applying the 1919 overpayment against the 1918 deficiency were not made until after the expiration of such 60-day period. We have 'held that a timely collection is not illegal because the assessment may have been irregular or not strictly in conformity ■ with the statute. John Muir v. United States, 78 C. Cls. 150; Mahoning Investment Co. v. United States, 78 C. Cls. 231; Pioneer Coal & Coke Co. v. United States, 83 C. Cls. 200, 217 218; Anderson, et al. v. United States, 83 C. Cls. 561, 578; Combined Industries Inc. v. United States, 83 C. Cls. 613; Blue Jay Lumber Co. v. United States," }, { "docid": "13033394", "title": "", "text": "think the Tenzer case is clearly distinguishable. In that case the Court of Appeals emphasized that the Commissioner abandoned his notice sent by registered mail on June 26,1958, when he chose to make “actual personal service” of the deficiency notice on the taxpayer on July 24,1958. That started a new 90-day period running for filing a petition in the Tax Court. By contrast, the respondent in this case did not abandon his mailing method of service in favor of personal service. We seriously doubt whether the Court of Appeals would take the liberty of extending its Tenzer rationale to cover this situation since it specifically stated (285 F. 2d at 958) : We see a consistent pattern in the cases that the Commissioner customarily uses registered (or now certified) mail. Well he may, because with that he has some idea where he stands under the statute. In its later opinion in Cohen v. United States, 297 F. 2d 760 (C.A. 9, 1962), the Court of Appeals commented (p. 772) : We think it clear that the Congress, when it “authorized” service by registered mail, did not intend to require actual receipt by the addressee of the letter. Rather, it permitted the use of a method of giving notice that would ordinarily result in such receipt. Failure to petition the Board of Tax Appeals (now the Tax Court) within 90 days of the mailing of the letter does deprive the taxpayer of a privilege, namely, withholding payment of the tax pending determination of the validity and correctness of the assessment by the Board (Tax Court) (§ 272(a)), and litigating the matter before the Board (Tax Court). (See Ginsburg v. United States, 1 Cir., 1960, 278 F. 2d 470.) But it does not deprive him of all right to contest the validity or correctness of the assessment; he can still do this by paying the tax, filing a claim for refund, and if that be denied, suing in the District Court or Court of Claims, (e.g. Van Antwerp v. United States, 9 Cir., 1937, 92 F. 2d 871.) And if he wins," }, { "docid": "1375850", "title": "", "text": "was at that time little more than a preliminary skirmish.” Blair v. Curran (C. C. A.) 24 F.(2d) 390, 392. Under the act of 1926, except in few instances, and mainly where proceedings were already begun before the Board under the 1924 act, the jurisdiction of the Board, and of this court on appeal was made exclusive. Ohio Steel Foundry Co. v. United States (Ct. Cl.) 38 F.(2d) 144. As the court said in the last case cited, page 148 of 38 F.(2d): “We think section 284 (d) of the Revenue Act of 1926 (26 USCA § 1065 (d) contemplated that no suit should be instituted by a taxpayer for the recovery of a tax after the Commissioner has determined and notified such taxpayer of a deficiency in respect of the tax for such taxable year, in the event of institution by the taxpayer of a proceeding before the Board of Tax Appeals for the re-determination of such a deficiency. * * * “Had the Commissioner determined a deficiency in respect of the tax of this plaintiff for the year 1918 and mailed to it a notice of such determination, and the plaintiff herein bad instituted a proceeding before the Board of Tax Appeals prior to the bringing of this suit, we think this suit would, under such circumstances, be premature and this court would be without jurisdiction to entertain it. Under such circumstances it would be incumbent upon the taxpayer to raise all questions relating to his tax liability for the taxable year, in respect of which the Commissioner bad determined the deficiency, before the Board of Tax Appeals and to pursue bis remedy with respect both to the deficiency and to any claimed overpayment to a conclusion under the provisions of the Revenue Act of 1926, either by accepting the decision of the Board, which has become final by the expiration of the time for filing of a petition for review of such decision, or by prosecuting such review to a conclusion as provided by law.” But even if the District Court bad jurisdiction, we think that its" }, { "docid": "15641748", "title": "", "text": "of that position, and rights having become fixed on that basis, we are clear that his estate ought not now to be allowed to repudiate the position so definitely taken nor to assert rights inconsistent therewith. Magee v. United States, 282 U. S. 432, 51 S. Ct. 195, 75 L. Ed. 442; Davis v. Wakelee, 156 U. S. 680, 15 S. Ct. 555, 39 L. Ed. 578; Casey v. Galli, 94 U. S. 673, 680, 24 L. Ed. 168; Hartwell Mills v. Rose, 61 F.(2d) 441 (C. C. A. 5). “If it was a mistake, of which there is no evidence, it was one made by the defendant, of which he took the benefit, and the plaintiff the loss, and it is too late to correct it.” Curtis, J., Philadelphia, W. & B. R. Co. v. Howard, 13 How. 307, at 337, 14 L. Ed. 157. The present case is not different in principle from those in which a taxpayer, having the right to file either one of two different sorts of returns, makes his choice and files his returns accordingly. It is settled that he cannot afterwards change. Radiant Glass Co. v. Burnet, 60 App. D. C. 351, 54 F.(2d) .718. This is so even where the taxpayer, under a mistake of law, was unaware that he had the' right to choose. Buttolph v. Commissioner, 29 F.(2d) 695 (C. C. A. 7). It is not a case in which income, unquestionably received, was not included in the tax returns. There are provisions in the statutes dealing with such situations. Here there was 1 room for real doubt as to whether the interest, which was obtainable but was not actually in hand, ought to be returned. Moran honestly took the position — which the Commissioner now takes — that the interest was not received before actually collected. It was open to Moran to choose which way he would deal with the matter. It might also have been open to the Commissioner to challenge Moran’s right to take the course which, he followed. But, where the Commissioner does not challenge it," }, { "docid": "23273799", "title": "", "text": "Commissioner’s determination of a deficiency for 1918, and it has authority and jurisdiction under the statute to decide all matters placed in issue concerning the tax liability of the Ohio Steel Foundry Company for 1918. Peerless Woolen Mills, 13 B. T. A. 1119; Peerless Woolen Mills v. Rose (C. C. A.) 28 F.(2d) 661. The jurisdiction of this court in no wise depends upon the lack of jurisdiction or authority of the Board to adjudicate any question in relation to the correct tax liability, but rests upon the language of section 284(d) (26 USCA § 1065(d) that, “if the Commissioner has mailed * * * a notice of deficiency * * * and if the taxpayer after February 26, 1926, files a petition with the Board * * * within the time prescribed * * * no suit by the taxpayer for the recovery of any part of such tax shall be instituted in any court.”' This language, in our opinion, applies only to( the institution of suit in -court after the mailing of the deficiency notice and the institution of a proceeding before the Board of Tax Appeals, and does not deprive the court of jurisdiction of a suit instituted before the mailing of the deficiency notice. Cf. Plains Buying & Selling Association, 5 B. T. A. 1147, in which the Board held that it was not deprived of jurisdiction under section 282(a) of the Revenue Act of 1926 (26 USCA § 1071(a) by adjudication of bankruptcy of a taxpayer or the appointment of a receiver after the institution of a proceeding before it, but that the Board and the court had concurrent jurisdiction in such cases. See, also, Elmhurst Investment Co. et al. v. United States (D. C.) 24 F.(2d) 561, in which the District Court of Kansas held that the mailing of a deficiency notice and the bringing of a proceeding before the Board, all occurring after the enactment of the Revenue Act of 1926 and after the institution of suit'in that court, did not deprive the court of jurisdiction. We think section 284(d) of the Revenue" }, { "docid": "23273794", "title": "", "text": "1926. Subsequent to the mailing by the Commissioner of the deficiency notice on December 29, 1926, the parties to this suit filed with the court certain stipulations of fact, testimony was taken, and documentary evidence introduced, and the plaintiff’s ease was elosed. Thereafter, on January 14,1929, the defendant filed its special answer and plea to the jurisdiction of this court. The question for decision is whether, under the provisions of the Revenue Act of 1926, the determination by the Commissioner of a deficiency and the institution by the taxpayer of a proceeding before the Board of Tax Appeals, all occurring after the suit had been properly instituted in this court, renders such suit premature and deprives this court of jurisdiction to entertain it. The defendant insists that such is the ease, for the reason (1) that the plaintiff’s remedy in the proceeding before the Board of Tax Appeals is the same as that sought in this court, since the Board is authorized to find that there has been an overpayment of tax; (2) that the beginning of a proceeding before the Board and a suit for refund are alternative remedies, which may not be pursued by a taxpayer at the same time; (3) that the taxpayer has ample protection and right of appeal before either the Board or this court, and that, having chosen one tribunal, he should be excluded from the other at least until final judgment is made by that tribunal; and (4) that, in any event, suit may not be brought in this court until the plaintiff has paid the deficiency asserted by the Commissioner. By the Revenue Act of 1926 the jurisdiction and powers of the Board of Tax Appeals were enlarged and a system of review of the decisions of the Board by the United States Circuit Courts of Appeals or the Court of Appeals of the District of Columbia was provided so that, if a taxpayer, having been notified, by the Commissioner of a deficiency, elects to file a petition with the Board, after the enactment of the Revenue Act of 1926, his entire" }, { "docid": "3194696", "title": "", "text": "this ease elected, upon the receipt of the deficiency assessment notice, to take its controversy with the Commissioner of Internal Revenue as to its tax liability for the year 1926 to the Board of Tax Appeals. This board, with the right of a judicial review of its decision granted by the statutes, afforded the plaintiff a forum with full authority and jurisdiction in which it could have a judicial determination as to every question involved in its tax liability for the year in question. Old Colony Trust Co. et al. v. Commissioner of Internal Revenue, 279 U. S. 716, 49 S. Ct. 499, 73 L. Ed. 918; Bindley et al. v. Heiner (D. C.) 38 F.(2d) 489. The fact that the precise question presented here was not considered and determined by the board is not material. The plaintiff had the undoubted right by proper allegations in its petition to set up its claim for an overpayment before the board and to raise the question of the validity of any part of its taxes before the board and carry such question on to the courts, • had it seen fit to do so. Not having availed itself of the opportunity to litigate its right to a refund of the taxes assessed against it under section 245 (a) of the Revenue Act of 1921, in the forum of its own selection, which had ample authority to determine the same, it cannot be heard to say it has been denied its day in court. Section .1000, title 10, of the Revenue Act of 1926 (44 Stat. 107) amending section 907 (a), title 9, of the Revenue Act of 1924, provides that notice and opportunity to be heard shall be given by the board to the taxpayer and the commissioner and that a decision shall be made as quickly as practicable. The same section, amending section 906 (d) of the Revenue Act of 1924, provides that the “decision of the Board shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records" }, { "docid": "3194694", "title": "", "text": "as provided in subdivision (a).” Under this provision of the statutes, the Board of Tax Appeals is vested with full authority, when a case has been brought before it, on appeal from a deficiency assessment by the commissioner to decide ail questions, both as to deficiencies and overpayments, that can arise between a taxpayer and the Government in relation to the tax liability for the year or years in question. Ohio Steel Foundry Co. v. United States, 69 Ct. Cl. 158. Under the 1924 Revenue Act (43 Stat. 253) no direct judicial review of proceedings before the Board of Tax Appeals was provided, both the taxpayer and the Government, however, having the right to test the correctness of the board’s action in any court of competent jurisdiction. This procedure was changed in the 1926 Revenue Act and a direct judicial review of the board’s decision was substituted, and the board’s jurisdiction was enlarged to enable it to consider deficiencies beyond those shown in the commissioner’s notice, if the commissioner made such a claim at or before the hearing, section 274 (e), 26 USCA § 1048(c) and also to determine that the taxpayer not only did not owe the tax but had overpaid, section 284(e), 26 USCA § 1065(e). Having thus enlarged the jurisdiction of the board and provided for a review of its proceedings by the Circuit Court of Appeals, and the Circuit Court of the District of Columbia, and of the Supreme Court upon certiorari, the 1926 revenue act in section 284 (d), 26 USCA § 1065(d), in respect to those eases where the taxpayer after receipt of a deficiency notice under subdivision 274 (a), (26 USCA § 1048) files an appeal with the Board of Tax Appeals, makes the decision of the board conclusive and final, and provides that no credit or refund in respect of the tax for the year in which the commissioner has determined the deficiency shall be allowed or made, and no suit by the taxpayer for the recovery of any part of such tax shall be instituted in any court. The plaintiff in" }, { "docid": "22840140", "title": "", "text": "272(a)). The same statute also provides: “In the case of a joint return filed by husband and wife such notice of deficiency may be a single joint notice, except that if the Commissioner has been notified by either spouse that separate residences have been established, then, in lieu of the single joint notice, duplicate originals of the joint notice must be sent by registered mail to each spouse at his last known address.” Subsection (k) of section 272 provides: “In the absence of notice to the Commissioner under section 312(a) of the existence of a fiduciary relationship, notice of a deficiency in respect of a tax imposed by this chapter, if mailed to the taxpayer at his last known address, shall be sufficient for the purposes of this chapter even if such taxpayer is deceased, or is under a legal disability, or, in the case of a corporation, has terminated its existence.” We think it clear that the Congress, when it “authorized” service by registered mail, did not intend to require actual receipt by the addressee of the letter. Rather, it permitted the use of a method of giving notice that would ordinarily result in such receipt. Failure to petition the Board of Tax Appeals (now the Tax Court) within 90 days of the mailing of the letter does deprive the taxpayer of a privilege, namely, withholding payment of the tax pending determination of the validity and correctness of the 'assessment by the Board (Tax Court) (§ 272(a)), and litigating the matter before the Board (Tax Court). (See Ginsburg v. United States, 1 Cir., 1960, 278 F.2d 470.) But it does not deprive him of all right to contest the validity or correctness of the assessment; he can still do this by paying the tax, filing a claim for refund, and if that be denied, suing in the District Court or Court of Claims, (e. g. Van Antwerp v. United States, 9 Cir., 1937, 92 F.2d 871). And if he wins, he gets his money back, normally, with interest. We have no doubt that the Congress, if it chose to" }, { "docid": "13788601", "title": "", "text": "year ending September 30th, the Commissioner, as the findings show, acquiesced in this decision and proposed to apply it to other years. Presumably for the purpose of ascertaining whether the plaintiff had any objection thereto, he sent to plaintiff the statement set out above. Plaintiff apparently was greatly pleased with the information that in accordance with the decision of the Board of Tax Appeals it would be entitled to a refund of about a quarter of a million dollars. It hastened to express its approval thereof in the language set out above which, as will be seen, was in the most positive terms and stated in substance that the years in question might be “closed completely.” Accordingly the Commissioner proceeded to close the ease by making assessments and certifying to over-payments in accordance with the statement. This showed, as above stated, a large refund due which was accordingly paid and accepted by plaintiff. Plaintiff now comes into this court and urges that the decision of the Board of Tax Appeals was wrong, and that the facts show that its income should be computed on a calendar-year basis under the decision of this court in Swift & Co. v. United States, 38 F.(2d) 365, 69 Ct. Cl. 171. The ease cited by plaintiff is so different in its facts as to have no application, and in any event we do not need to determine the somewhat complicated question of whether the income of plaintiff should be computed on a calendar-year basis or that of a fiscal year. If the estoppel is sustained by the evidence, it is immaterial whether the Commissioner acted in accordance with the law in computing the income on a fiscal-year basis for in such event the plaintiff cannot avail itself of this plea. We are clear that “good conscience and honest dealing” prevent the plaintiff from repudiating its previous statements and declarations. It is not necessary in order to create an equitable estoppel that there should be any misrepresentation as to the facts. It is sufficient if the party against whom an equitable estoppel is set up" }, { "docid": "11073776", "title": "", "text": "of section 274 (a) of the Revenue Act of 1924 (26 USCA § 1048 note), which reads as follows: “If, in the ease of any taxpayer, the Commissioner of Internal Revenue determines that there is a deficiency in respect of the tax imposed by this chapter, the taxpayer, except as provided in section 1051 of this title, shall be notified of such deficiency by registered mail, hut such deficiency shall he assessed only as hereinafter provided. Within sixty days after such notice is mailed the taxpayer may file an appeal with the Board of Tax Appeals established by section 1211.” It is contended by appellant that such letter was ineffectual as a notice, because it did not contain his correct street address, and therefore the assessment made by the Commissioner under date of April 6, 1926, was invalid. Several decisions of the Board of Tax Appeals are cited by appellant in support of his contention that a notice mailed to an incorrect address of a taxpayer is invalid. In none of these eases, however, was it so held where such notice was sent by registered mail and delivered to the correct address of the taxpayer. Reference is made by appellant to the case of Dilks v. Blair, Commissioner, 23 F.(2d) 831, decided by this court. In that case notice was sent by registered mail, but was improperly addressed to the city of New York instead of to Chicago. It was deposited in the mails at Washington, D. C., and was sent to New York, and from there forwarded to the correct address in Chicago, Ill. The taxpayer filed an appeal with the Board of Tax Appeals on the sixty-first day after the mailing of the letter in Washington. It was held by the Board of Tax Appeals that the appeal came too late, but upon appeal this court reversed the decision of the Board. We held that the improper address caused a delay of one day in the receipt of the letter by the taxpayer, and that therefore the sixty-day period should be extended one day. The statute provides only" }, { "docid": "9348562", "title": "", "text": "rules of the Board. Rule 20 provides: “Continuances, extensions of time (except for the filing of the petition), and adjournments may be ordered by the Board on its own motion, or may be granted by it in its discretion on motion of either party filed in writing and showing good and sufficient cause therefor.” These rules are merely procedural and cannot under any circumstances limit or control the statutory jurisdiction conferred upon the Board. Weaver v. Blair (C. C. A.) 19 F.(2d) 16. Section 907 (a) of the Revenue Act of 1926, 44 Stat. 9, 107, specifically requires that in all eases notice and an opportunity to be heard shall be given the Commissioner. . The Commissioner is not required by statute to file a return or answer, but he must be given an opportunity to be heard, and no rule of the Board can deprive him of the statutory right thus conferred. Rules of the Board, like rules of court, are made to define and regulate its procedure, and when strictly enforced have the force of statute; but it is always within the power of the promulgating authority to modify its own rules if the ends of justice seem to require it in a given case. Extension of time for pleading, in derogation of rule, is discretionary, and in the absence of gross abuse, will not be reviewed even on error. In no event can mandamus be invoked to control the exercise of this discretion. When, however, an inferior court or board attempts to disregard or modify the rule of a superior tribunal, or enforce an invalid rule, a different question, not necessary to be here considered, is presented. The jurisdiction of the Board of Tax Appeals is not appellate but revisory. In other words, a taxpayer dissatisfied with the decision of the Commissioner may petition the Board of Tax Appeals for a redetermination of his assessment; and the duty is imposed upon the Board, where a petition is filed within the time allowed by statute) to hear and determine the ease, not exclusively upon the record made before" }, { "docid": "15626820", "title": "", "text": "(C. C. A. 1) 62 F.(2d) 654. Wo are not impressed by the attempted distinctions between the present ease and those decisions. Without legal control of the Sulzberger stock, the Brazil Railway Company did not control substantially all of the petitioner’s stock. The petitioner next contends that collection of the tax for 1918 is barred by the statute of limitations. This is so, unless the running of the statute was tolled by proceedings instituted by the petitioner before the Board of Tax Appeals. The Commissioner assessed a tax of about $890,000 against the petitioner for that year. The petitioner duly tiled with the Commissioner a claim in abatement. In April, 1925, the Commissioner sent a notice to the petitioner that the abatement was granted in the amount of about $23,000, and denied as to the remainder. The petitioner treated this letter as “a notice of deficiency,” which entitled it to appeal to the Board of Tax Appeals. Accordingly, in June, 1925, it filed a petition of appeal before the Board of Tax Appeals in whieh, as it therein stated, it appealed from the determination of the Commissioner of Internal Revenue set forth in his “deficiency letter (italics supplied), dated April 25, 1925.” A “deficiency letter” so called, or notice of deficiency, was a neeessary foundation for the jurisdiction of the Board of Tax Appeals in the mattor. The proceedings thus initiated by the petitioner were not finally decided until some time in 1932. Taking out this period, the collection of the tax is not barred by the statute of limitations. In those proceedings, all questions as to the petitioner’s taxes were fully heard and determined. The Commissioner held np the collection of the tax while they were pending. (See Revenue Act 1926, c. 27, § 274 (a), 44 Stat. 9, 55 [26 USCA § 1048].) The petitioner now undertakes to repudiate its statement that the Commissioner’s letter was a “deficiency letter,” on which the whole proceeding before the Board of Tax Appeals was founded, and to assert that said letter was not a deficiency letter; that it (the petitioner) had" }, { "docid": "10893484", "title": "", "text": "VAN ORSDEL, Associate Justice. This appeal is from an order of the United States Board of Tax Appeals dismissing appellant’s petition asking a redetermination of deficiencies in taxes for the years 1922, 1923, and 1924. It appears that on November 10, 1927, the Commissioner mailed appellant the statutory notice of his determination of deficiencies; and on January 10; 1928, appellant filed Ms petition with the Board asking for a redetermination of the deficiencies. The Commissioner filed a motion to dismiss for lack of jurisdiction, on the ground that the petition was not filed with the Board until the 61st day after the mailing of the deficiency notice, the 60th day not being Sunday. Section 274(a) of the Revenue Act of 1926, 44 Stat. 55 (26 USCA § 1048), provides as follows: “If in the ease of any taxpayer, the commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within 60 days after such notice is mailed (not counting Sunday as tho sixtieth day), the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of tho deficiency.” Rule 61 of the Rules of Practice before the Board of Tax Appeals provides: “When the time prescribed by these rules for doing any act expires on a Sunday or a legal holiday in tho District of Columbia, such time shall extend to and include the next succeeding day that is not a Sunday or such a legal holiday; Provided, That when the time for performing any act is prescribed by statute nothing in these rules shall be deemed to be a limitation or extension of the statutory time fixed.” Under Rule 1 of the Rules of Practice of the Board of Tax Appeals, it is provided that “the office of the Board at Washington, D. C. will be open each business day from 9:00 o’clock a. m. to 4:30 o’clock p. m.” It is contended that, inasmuch as the notice of November 10,1927, was not" } ]

[ { "docid": "22729896", "title": "", "text": "which did not generally permit extensive factual development. Even where a court of appeals reversed a contempt adjudication because of the district court’s failure to allow the defendant to testify on his own behalf with respect to material issues, there was no hint of either the right to, or the necessity for, any discovery proceedings against the Government. Hooley v. United States, 209 F. 2d 219 (CA1 1954). Congress was, of course, free to expand the scope of inquiry in these proceedings, to enlarge the issues to be tried, and to alter past practice in any other way that it chose consistently with the Constitution. But in view of the stated congressional intent to “codify present practice” by the enactment of § 1826 (a), we should require rather strong evidence of congressional purpose to conclude that Congress intended to engraft on the traditional and rather summary contempt hearings a new type of hearing in which a grand jury witness is accorded carte blanche discovery of all of the Government’s “applications, orders, tapes, and transcripts relating to such electronic surveillance” before he may be required to testify. 443 F. 2d, at 838. II Just as Congress was not writing on a clean slate in the area of contempt hearings, it was not writing on a clean slate with respect to the nature of grand jury proceedings. These petitioners were called before a grand jury that had been convened to investigate violations of federal laws. We deal, therefore, not with the rights of a criminal defendant in the traditional adversary context of a trial, but with the status of witnesses summoned to testify before a body devoted to sifting evidence that could result in the presentment of criminal charges. Just as the cases arising under the antecedents of 28 U. S. C. § 1826 (a) suggest a limitation on the type of issue which may be litigated in such a proceeding, cases dealing with the role of the grand jury stress the unique breadth of its scope of inquiry. In Blair v. United States, 250 U. S. 273, 282 (1919), this Court" } ]

[ { "docid": "11651007", "title": "", "text": "in any way employed other taps in formulating lines of inquiry or questions to be posed to the witness. 511 F.2d 472, n. 2. In United States v. D’Andrea, 495 F.2d 1170 (3d Cir. 1974), the Third Circuit sustained the government’s unsworn denial after the witness had come forward “with no more than a bald accusation of illegality.” 495 F.2d at 1174, n. 12. The Ninth Circuit decision in United States v. See, 505 F.2d 845 (9th Cir. 1974) adopts a fluid standard under which the adequacy of the government’s denial depends on the specificity of the witness’s allegation of illegality: [B]ecause responding to ill-founded claims of electronic surveillance would place an awesome burden on the government, a claim of government electronic surveillance of a party must be sufficiently concrete and specific before the government’s affirmance or denial must meet . . . [factual, unambiguous and unequivocal]. Accordingly, a general claim requires only a response appropriate to such a claim. The record discloses that the appellants’ claim of electronic surveillance of them was vague to the point of being a fishing expedition. The government’s response to the claim was more than adequate. The Ninth Circuit’s conclusion that a general allegation of illegality merits only a general denial is both logical and realistic. § 3504, even as discussed in Gelbard, supra, note 2, was never intended to permit a witness to thwart the progress of grand jury proceedings by the mere conclusory and unsubstantiated assertion of illegal surveillance. A contrary conclusion could arm a recalcitrant witness with the capability to delay and impede legitimate grand jury investigations. In the instant case, government counsel made forthright albeit unsworn oral and written' denials of illegal surveillance. The written response was made at the direction of the court. As we noted in Beverly, district courts must balance the right of witnesses to be free from unwarranted surveillance with the right of the government to operate grand juries in an effective manner; such courts must be given “wide latitude” in evaluating claims of unlawful surveillance. We conclude that the district court did not abuse its" }, { "docid": "15099998", "title": "", "text": "F.2d at 728. We affirm the order in the instant case as well, not only because of the belated nature of the claim, as in Tse, but because the government, we think, was not fully responsible for the arguable deficiencies in its initial response. Sergeant McGreal was present at the contempt hearing, and the record reveals that the government was prepared to put him on the stand. Instead, following Agent Horan’s testimony, the district court deemed the government’s response sufficient and terminated the hearing. Under such circumstances, we cannot fully fault the government for not insisting on the presentation of further evidence. The order of contempt is affirmed. . A court may hold in civil contempt any grand jury witness who \"refuses to testify without just cause shown to comply with an order of the court to testify_” 28 U.S.C. § 1826(a). A showing that the questioning of such a witness was based on illegal electronic surveillance constitutes \"just cause\" for refusing to testify and precludes a finding of contempt. Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972); In re Grand Jury Proceedings, 786 F.2d 3, 7 (1st Cir.1986) (per curiam). . As here applicable, 18 U.S.C. § 3504(a) requires that, \"upon a claim\" by a grand jury witness that the questioning is based on illegal electronic surveillance, \"the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful\" surveillance. .In their affidavits, described more fully below, the several government investigators and attorneys characterize the 1985 surveillance as \"court-authorized.\" They also indicate that information derived therefrom was subsequently used at the trial of appellant's father (resulting in his conviction for narcotics offenses) — with the implication that the surveillance was determined to have been legal. The authorizing documents, however, have not been turned over to appellant for inspection as required by In re Lochiatto, 497 F.2d 803, 807-08 (1st Cir.1974); see also In re Grand Jury, 851 F.2d 499, 500 (1st Cir.1988) (per curiam); In re Mintzer, 511 F.2d 471, 472 n. 1 (1st Cir.1974) (per curiam), and no effort" }, { "docid": "18074173", "title": "", "text": "answered. Under these circumstances, a § 3504 request will rarely be rejected as untimely, and the government has been held to a high standard of completeness in responding to such a request. In re Buscaglia, 518 F.2d 77, 79 (2d Cir. 1975). But even in a grand jury proceeding, upon the government’s production of a valid warrant the witness has been held not to be entitled to a full-blown hearing on the legality of the warrant prior to testifying since “the traditional notion that the functioning of the grand jury system should not be impeded or interrupted could prevail at that time over the witness’ interest . . . .” In re Persico, 491 F.2d 1156, 1160 (2d Cir. 1974). See also Gelbard v. United States, supra, 408 U.S. at 70, 92 S.Ct. 2357 (White, J., concurring). Similarly, where the questions asked of a grand jury witness are narrow in scope, an affidavit by the Assistant United States Attorney in charge of the grand jury proceeding, as distinguished from an all-agency search, will suffice, since he would know if his questions were derived from illegal surveillance. “It must be remembered that any electronic surveillance by the government is relevant only if it is somehow used in formulating questions that the grand jury intends to ask. Thus, surveillance conducted by the government, the results of which were not known to the agents investigating this case, would not be relevant. ... I think that the assistant United States attorney handling a case and the FBI agent in charge of the investigation of a case are the two people most likely to know if the fruits of any electronic surveillance were used to gain information on which the grand jury would base its questions. Thus, I think that the denial was sufficient.” United States v. Grusse, 515 F.2d 157, 159 (2d Cir. 1975) (Lumbard, J., concurring). In addition, the duty of the government to respond under § 3504 may vary with the specificity of the claims raised by the witness. United States v. See, 505 F.2d 845, 856 (9th Cir. 1974), cert. denied," }, { "docid": "5936934", "title": "", "text": "that a mere assertion of illegal conduct would trigger the government’s obligations under § 3504, that language must be read in light of the detailed averments of illegal electronic surveillance in Tosacnino, 500 F.2d at 270—71. The majority opinion in In re Evans, supra, insofar as it allows a witness to rely on “mere assertion”, seems to us to be unsound. See also United States v. Vielguth, 502 F.2d 1257 (9th Cir. 1974) (§ 3504 obligation triggered by affidavit declaring that questions propounded by grand jury “could only have been obtained by illegal electronic surveillance of my conversations or of my premises”); but see In re Vigil, supra. Other courts have found that the nature of the government’s investigation and denial of misconduct under § 3504 depends upon the specificity of the charges made by the grand jury witness. See United States v. Stevens, 510 F.2d 1101 (5th Cir. 1975); United States v. See, 505 F.2d 845 (9th Cir. 1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975). While our finding that there was no “claim” at all in this case makes it unnecessary to consider the application of a “fluid standard” to the resolution of such situations, we note that these cases indicate that not every accusation of misconduct by the prosecution requires a detailed response by government agencies to determine their participation in any wrongdoing. See also In re Mintzer, 511 F.2d 471 (1st Cir. 1974). Finally, Millow requests that if we find against him on the merits, we grant bail pending an application for certiorari to the Supreme Court. A person confined pursuant to 28 U.S.C. § 1826(a) may have bail set pending appeal only if it appears that the appeal is not frivolous or taken for delay, 28 U.S.C. § 1826(b). At oral argument the government submitted the affidavits requested by Millow. Thus, even if we are wrong in our conclusion that responsive affidavits from the government were unnecessary because there was no claim made by Millow, the fact that the government has now submitted affidavits which comply fully with its obligation" }, { "docid": "17940511", "title": "", "text": "or deny the existence of taps, the United States Attorney submitted an affidavit on October 16 in which he swore that he knew of no electronic surveillance by which the plaintiff was aggrieved other than those conducted pursuant to E.B.D. 71-98 and E.B.D. 71-168. Appellant, however, refused to answer when called before the grand jury on October 23, and the government moved for an order of contempt on October 25. Appellant subsequently challenged the government’s disclosure as inadequate; the government then searched its files and discovered a subsequent wiretap, E.B.D. 71 — 203, revealing it at the contempt hearing on November 12. The materials, authorizations and affidavits of need along with a time-length affidavit, required by Lochiatto, 497 F.2d at 808, pertaining to all wiretaps so revealed were made available or were already in the hands of appellant’s counsel prior to the witness’ grand jury appearance. In addition, the government attorney affirmed under oath that all questions to be asked were derived exclusively from E.B.D. 71 — 98. Defendant asserts that the requirement to “affirm or deny” incorporates a requirement to search central federal records and all state records. Further, that once the wiretaps have been revealed, the grand jury witness must be given an opportunity to develop a case that some of the taps (presumably those shown to be illegal under Lochiatto) are “arguably relevant” to the questions posed. These arguments are premised on the language of 18 U.S.C. § 3504(a)(1): “upon a claim of a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by ex ploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act?’. [Emphasis supplied.] and 18 U.S.C. § 2518(10)(a): “any aggrieved person . . . may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom if We think that in a grand jury proceeding, the policies articulated in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), foreclose the" }, { "docid": "17940510", "title": "", "text": "PER CURIAM. The appellant was called as a witness before a grand jury. Although granted immunity for his testimony, he was recalcitrant when he appeared and was as a consequence held in contempt pursuant to 28 U.S.C. § 1826(a). The district court had, in an effort to expedite matters, permitted the witness to seek government affirmance or denial of wiretapping, under 18 U.S.C. § 3504, prior to his grand jury appearance. This was not required, because appellant was not yet an “aggrieved person” as defined by the statute. Gelbard v. United States, 408 U.S. 41, 54, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972); see In re Lochiatto, 497 F.2d 803, 806 (1st Cir. 1974). But the district judge reasoned that time would be saved by extending the privilege before the witness was brought before the grand jury. The government was, then, asked to affirm or deny the existence of wiretaps at the hearing where the witness was granted immunity (October 10, 1974). In response to the court’s request of October 10 that the government affirm or deny the existence of taps, the United States Attorney submitted an affidavit on October 16 in which he swore that he knew of no electronic surveillance by which the plaintiff was aggrieved other than those conducted pursuant to E.B.D. 71-98 and E.B.D. 71-168. Appellant, however, refused to answer when called before the grand jury on October 23, and the government moved for an order of contempt on October 25. Appellant subsequently challenged the government’s disclosure as inadequate; the government then searched its files and discovered a subsequent wiretap, E.B.D. 71 — 203, revealing it at the contempt hearing on November 12. The materials, authorizations and affidavits of need along with a time-length affidavit, required by Lochiatto, 497 F.2d at 808, pertaining to all wiretaps so revealed were made available or were already in the hands of appellant’s counsel prior to the witness’ grand jury appearance. In addition, the government attorney affirmed under oath that all questions to be asked were derived exclusively from E.B.D. 71 — 98. Defendant asserts that the requirement to “affirm" }, { "docid": "5936933", "title": "", "text": "with the FBI agent in charge of the investigation that no electronic surveillance had occurred. Compare In re Vigil, 524 F.2d 209, 214 (10th Cir. 1975), holding that under similar facts not even this was required. At the October 31 contempt hearing, Millow did submit an affidavit to bolster his assertion of illegal wiretapping. That affidavit, however, merely recounted the patently frivolous contention we have dealt with above, namely, that the government had conceded misconduct in its October 29 statement concerning electronic and physical surveillance of Mil-low. Unsupported suspicion and patently frivolous assertions of government misconduct do not constitute a “claim” under § 3504 sufficient to trigger the government’s obligation to disrupt grand jury proceedings and check thoroughly the applicable agency records. We know of no authority to the contrary. While in United States v. Toscanino, 500 F.2d 267, 281 (2d Cir. 1974), we cited with approval language from In re Evans, 146 U.S.App.D.C. 310, 452 F.2d 1239, 1242 (1971), cert. denied, 408 U.S. 930, 92 S.Ct. 2479, 33 L.Ed.2d 342 (1972) to the effect that a mere assertion of illegal conduct would trigger the government’s obligations under § 3504, that language must be read in light of the detailed averments of illegal electronic surveillance in Tosacnino, 500 F.2d at 270—71. The majority opinion in In re Evans, supra, insofar as it allows a witness to rely on “mere assertion”, seems to us to be unsound. See also United States v. Vielguth, 502 F.2d 1257 (9th Cir. 1974) (§ 3504 obligation triggered by affidavit declaring that questions propounded by grand jury “could only have been obtained by illegal electronic surveillance of my conversations or of my premises”); but see In re Vigil, supra. Other courts have found that the nature of the government’s investigation and denial of misconduct under § 3504 depends upon the specificity of the charges made by the grand jury witness. See United States v. Stevens, 510 F.2d 1101 (5th Cir. 1975); United States v. See, 505 F.2d 845 (9th Cir. 1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975). While our finding" }, { "docid": "18074174", "title": "", "text": "he would know if his questions were derived from illegal surveillance. “It must be remembered that any electronic surveillance by the government is relevant only if it is somehow used in formulating questions that the grand jury intends to ask. Thus, surveillance conducted by the government, the results of which were not known to the agents investigating this case, would not be relevant. ... I think that the assistant United States attorney handling a case and the FBI agent in charge of the investigation of a case are the two people most likely to know if the fruits of any electronic surveillance were used to gain information on which the grand jury would base its questions. Thus, I think that the denial was sufficient.” United States v. Grusse, 515 F.2d 157, 159 (2d Cir. 1975) (Lumbard, J., concurring). In addition, the duty of the government to respond under § 3504 may vary with the specificity of the claims raised by the witness. United States v. See, 505 F.2d 845, 856 (9th Cir. 1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975); United States v. Stevens, 510 F.2d 1101 (5th Cir. 1975). In the present case, the balance weighs decidedly in the government’s favor. A motion made by trial witnesses only minutes before the commencement of a multicount, multi-defendant trial, even when made in good faith — and here the trial judge found bad faith — must be viewed in light of the public’s interest in preventing undue delay in bringing defendants to trial, as well as in light of the practical, but nonetheless critically important, public concern for the district court’s caseload and calendar congestion, the expense and inconvenience of assembling witnesses and veniremen in a single location at a specified time, as well as the preparation efforts of the prosecution and defense attorneys. Most of these factors are absent in the context of grand jury inquiries. As the Supreme Court has stated in distinguishing the availability of summary contempt in grand jury proceedings and at trial: “A grand jury ordinarily deals with many inquiries and" }, { "docid": "11651006", "title": "", "text": "standards for measuring the validity of a § 3504 response, we turn for guidance to the recent pronouncements of other circuits. Decisions in the First, Third and Ninth Circuits indicate that the imprecise language of § 3504 permits non-specific denials,- especially when the party asserting illicit surveillance makes a general, unsubstantiated allegation of unlawfulness. In In re Mintzer, 511 F.2d 471 (1st Cir. 1975) [No. 74-1388, Dec. 26, 1974], the First Circuit rejected a grand jury witness’s assertion that a valid § 3504 denial must be based on a thorough search of federal and state records to determine the possible existence of unlawful surveillance. According to that court, [w]hile we think this, at least as to federal authorities, is a salutary practice, and may be mandated in other contexts, see Gelbard v. United States, 408 U.S. 41, 56 [92 S.Ct. 2357, 33 L.Ed.2d 179] (1972), we also think that at this proceeding all that can be required is that those conducting the grand jury proceeding affirm that they have no knowledge of and have not in any way employed other taps in formulating lines of inquiry or questions to be posed to the witness. 511 F.2d 472, n. 2. In United States v. D’Andrea, 495 F.2d 1170 (3d Cir. 1974), the Third Circuit sustained the government’s unsworn denial after the witness had come forward “with no more than a bald accusation of illegality.” 495 F.2d at 1174, n. 12. The Ninth Circuit decision in United States v. See, 505 F.2d 845 (9th Cir. 1974) adopts a fluid standard under which the adequacy of the government’s denial depends on the specificity of the witness’s allegation of illegality: [B]ecause responding to ill-founded claims of electronic surveillance would place an awesome burden on the government, a claim of government electronic surveillance of a party must be sufficiently concrete and specific before the government’s affirmance or denial must meet . . . [factual, unambiguous and unequivocal]. Accordingly, a general claim requires only a response appropriate to such a claim. The record discloses that the appellants’ claim of electronic surveillance of them was vague to" }, { "docid": "17940513", "title": "", "text": "broad inquiry argued by appellant. Logical development of the Supreme Courts concern for expeditious grand jury proceedings precludes mini-trials on each witness’ rights; witnesses cannot be entitled to unlimited evidentiary exploration. In Lochiatto we indicated that the resolution of the legality of the wiretap was for the judge but that (unlike the trial situation) investigation of the legality for these purposes and in this type of proceeding would be confined to facial violations or error in the authorizations or legal invalidity that appears from a limited exploration. Lochiatto, 497 F.2d at 808. Appellant argues that we should interpret “primary product” or “evidence . . . obtained by exploitation”, § 3504(a)(1), or “contents of an intercepted wiretap”, § 2518(10)(a), to require a judicial determination of “arguable relevancy” of the content of taps, other than the ones the United States Attorney avers were used, to questions formulated. A similar inquiry, appellant argues, was mandated in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). But Alderman was a post-conviction case exploring the Fourth Amendment question of what must be excluded from trial evidence. The exclusionary rule has since been restricted to the trial context in Calandra, supra, and we think we must lean heavily on the latter ease in acknowledging that greater rights exist for criminal defendants than for grand jury witnesses. The witness’ rights here depend exclusively on the statute. We think it inconsistent with Lochiatto to permit the kind of exploration requested here. While relevance is normally a judicial question, we think a grand jury witness is adequately protected where the government- affirms the existence of wiretaps and gives access to the materials as required in Lochiatto, if the government also swears by affidavit that it did not have or use any other wiretaps or any of the taps the court determines to be illegal in the formulation of the questions to the witness. See In re Grand Jury Investigation (Testa), 486 F.2d 1013, 1016-1017 (3d Cir. 1973). The sworn statement on penalty of perjury which, should the witness become a defendant, would be followed" }, { "docid": "13992714", "title": "", "text": "seeks to establish surveillance of other persons’ conversations. ' As to the sufficiency of the response, it has been held by the Ninth Circuit that a general claim is satisfied by a general denial. United States v. See, 505 F.2d 845 (9th Cir. 1974), cert. denied sub nom., Gordon v. United States, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975). Fifth Circuit. A survey of some of the other Circuits shows that their decisions do not substantially differ from the view that we take here and from the rules in the Ninth Circuit. Beverly v. United States, 468 F.2d 732 (5th Cir. 1972). Here the court, although it disapproved the form and contents of the affidavits, reversed the district court’s holding that they were insufficient to satisfy the minimum requirements. The affidavits described noises, inability to get a number and inability to get a dial tone. This was surveillance of an attorney. Cf. United States v. Stevens, 510 F.2d 1101, 1105 (5th Cir. 1975). The government’s response is to be gauged by the specificity of the witness’ claim. A check of every interested agency was held to be a sufficient response. In re Tierney, 465 F.2d 806 (5th Cir. 1972), cert. denied, 410 U.S. 914, 93 S.Ct. 959, 35 L.Ed.2d 276 (1973). Beverly held that Tierney, supra, is not to be read as requiring live testimony. First Circuit. The First Circuit has held that an affidavit is sufficient response, adding that an extensive search, while good practice, was not required. In re Mintzer, 511 F.2d 471 (1st Cir. 1974), and see footnote 2 at 472. Cf. In re Marx, 451 F.2d 466 (1st Cir. 1971). Here the affidavit was filed very late in the proceedings. Because of the lateness the contempt was vacated (without prejudice). It was said that continued refusal would result in contempt. Third Circuit. Denial by affidavit has been upheld as sufficient in the Third Circuit. See In re Grumbles, 453 F.2d 119 (3d Cir. 1971) (statement not under oath given at the immunity hearing held sufficient, particularly when a later affidavit of denial was" }, { "docid": "17940516", "title": "", "text": "sufficient specificity before the district court. The appellant received all the information he was entitled to at the time. His citation for contempt is affirmed. Affirmed. . E.B.D. 71-98 was previously found to be a legal wiretap and E.B.D. 71-203 was previously admitted to have been authorized by Will Wilson, compare In re Marcus, 491 F.2d 901 (1st Cir. 1974) with United States v. Giordano, 416 U.S. 505, 520, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), facts both the district court and appellant’s counsel were apprised of prior to the contempt hearing. The government offered the contents of the 71-98 tap for court examination in support of its affidavit that all questions and information were derived therefrom. Moreover, appellant’s attorney had been in possession of the documents supporting all three taps (E.B.D.s 71-98, 71-168, and 71-203) for a substantial time prior to the contempt hearing of November 12. Under all these circumstances, appellant’s contention that he was denied a reasonable time for preparation of his defense, Fed. R.Crim.Proc. 42(b), recognized as applicable to such proceedings by United States v. Alter, 482 F.2d 1016, 1020-1024 (9th Cir. 1973), is without merit. . While we think this, at least as to federal authorities, is a salutary practice, and may be mandated in other contexts, see Gelbard v. United States, 408 U.S. 41, 56, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), we also think that at this proceeding all that can be required is that those conducting the grand jury proceeding affirm that they have no knowledge of and have not in any way employed other taps in formulating lines of inquiry or questions to be posed to the witness. See discussion infra. . The Act provides another forum for challenging taps and recovery of damages if the Act is violated, 18 U.S.C. § 2520." }, { "docid": "12000857", "title": "", "text": "habeas court from considering serious violations of § 2515 because this exclusionary rule was prescribed by Congress. . In affirming Cruz’s conviction, the New York Court of Appeals outlined “pertinent guidelines” for use by New York courts in assessing claims of unlawful wiretapping. 34 N.Y.2d at 369-70, 314 N.E.2d at 43, 357 N.Y.S.2d at 714-15; see also People v. Grieco, 94 Misc.2d 1043, 406 N.Y.S.2d 426 (N.Y.Crim.Ct.), aff'd, 98 Misc.2d 310, 413 N.Y.S.2d 821 (App.Term 1978). These state law guidelines, as Judge Sweet noted, approximate the standards federal courts have announced in applying § 3504. . Grusse and Millow arose in response to claims by grand jury witnesses that the government had relied on electronic surveillance to gather information used in formulating the questions asked them. It has been suggested that the balance between privacy rights and the interest in expeditious investigation may be more favorable to the government, specifically with regard to the required scope of § 3504 inquiries, where the relevant rights are those of grand jury witnesses than where, as here, the rights of a criminal defendant are at stake. See United States v. Grusse, 515 F.2d 157, 159 & n.1 (2d Cir. 1975) (Lumbard, J., concurring); In re Mintzer, 511 F.2d 471, 472-73 & n.2 (1st Cir. 1974). Even if the different interests affect the scope of the government inquiry that is required, however, they do not affect the requisite standard of believability of the information collected. In the latter regard, we think that the grand jury cases use the same standard that is applicable in criminal trials. If the prosecutor’s affidavit, together with evidence of reasonable diligence and specific responses from the appropriate agencies, is sufficient in the one setting, it is sufficient in the other. . The prosecutor’s response was not only adequate as a matter of law; it was also sufficient to comply with the terms of Judge Sweet’s order. The order required the state to “submitf] to this court by affidavit the results of a written inquiry” to appropriate agencies. The terms of the order, especially when read in the context of" }, { "docid": "13992713", "title": "", "text": "on the merits. In some cases the delay might be fatal to the enforcement of the criminal law. Judgment affirmed. APPENDIX Ninth Circuit. Other cases from the Ninth Circuit include: United States v. Fitch, 472 F.2d 548, cert. denied sub nom., Meisel v. United States, 412 U.S. 954, 93 S.Ct. 3003, 37 L.Ed.2d 1007 (1973) (less exacting than Alter on the question of the strength of the witnesses’ allegations to require a government response). See also United States v. Vielguth, 502 F.2d 1257 (9th Cir. 1974), which distinguishes the case in which the appellant seeks to show surveillance of conversations in which he was not a participant. A prima facie showing was required here. Cf. In re Harris, 383 F.Supp. 1036 (N.D.Cal.1974), holding that the mere assertion of a witness that he was the object of illegal surveillance triggers a government affirmance or denial. It can be said then that much less of a showing on the part of the witness is necessary where he seeks to establish surveillance of his conversations than where the seeks to establish surveillance of other persons’ conversations. ' As to the sufficiency of the response, it has been held by the Ninth Circuit that a general claim is satisfied by a general denial. United States v. See, 505 F.2d 845 (9th Cir. 1974), cert. denied sub nom., Gordon v. United States, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975). Fifth Circuit. A survey of some of the other Circuits shows that their decisions do not substantially differ from the view that we take here and from the rules in the Ninth Circuit. Beverly v. United States, 468 F.2d 732 (5th Cir. 1972). Here the court, although it disapproved the form and contents of the affidavits, reversed the district court’s holding that they were insufficient to satisfy the minimum requirements. The affidavits described noises, inability to get a number and inability to get a dial tone. This was surveillance of an attorney. Cf. United States v. Stevens, 510 F.2d 1101, 1105 (5th Cir. 1975). The government’s response is to be gauged by the" }, { "docid": "14321219", "title": "", "text": "those in a position to have relevant knowledge. The criminal responsibility of a corporation can be founded on the collective knowledge of its individual employees and agents. United States v. Bank of New England, N.A., 821 F.2d 844, 855 (1st Cir.), cert. denied, 484 U.S. 943, 108 S.Ct. 328, 98 L.Ed.2d 356 (1987). There is no reason why similar principles of institutional responsibility should not be used to analyze the actions of individual government attorneys called upon to represent the government as an institution in matters of court-ordered disclosure obligations. We have recognized institutional responsibility for inquiry on the part of the government in other aspects of the criminal process. In the context of grand jury proceedings, a witness who has been called to testify under a grant of immunity may refuse to answer questions if that witness asserts the inquiry is based on illegal electronic surveillance. In re Quinn, 525 F.2d 222, 225 (1st Cir.1975) (citing Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972)). Once a witness makes such a claim, the government bears the burden under 18 U.S.C. § 3504 to “affirm or deny the occurrence of the alleged unlawful act.” 525 F.2d at 225; In re Lochiatto, 497 F.2d 803, 806, 808 (1st Cir.1974). We have held that the government cannot meet this burden of denying the alleged illegality until it demonstrates that: those responding were in a position, by firsthand knowledge or through inquiry, reasonably to ascertain whether or not relevant illegal activities took place; ... for the § 3504 response to be adequate in this case, there must be included an explicit assurance indicating that all agencies providing information relevant to the inquiry were canvassed. Quinn, 525 F.2d at 225-26; see also In re Tse, 748 F.2d 722, 727 (1st Cir.1984) (affidavit of attorney for President’s Commission on Organized Crime adequate under Quinn where it stated the attorney and others with whom he had checked were in a position definitively to know what information had been supplied to the Commission and the sources of the information); In re Pantojas," }, { "docid": "17940514", "title": "", "text": "Fourth Amendment question of what must be excluded from trial evidence. The exclusionary rule has since been restricted to the trial context in Calandra, supra, and we think we must lean heavily on the latter ease in acknowledging that greater rights exist for criminal defendants than for grand jury witnesses. The witness’ rights here depend exclusively on the statute. We think it inconsistent with Lochiatto to permit the kind of exploration requested here. While relevance is normally a judicial question, we think a grand jury witness is adequately protected where the government- affirms the existence of wiretaps and gives access to the materials as required in Lochiatto, if the government also swears by affidavit that it did not have or use any other wiretaps or any of the taps the court determines to be illegal in the formulation of the questions to the witness. See In re Grand Jury Investigation (Testa), 486 F.2d 1013, 1016-1017 (3d Cir. 1973). The sworn statement on penalty of perjury which, should the witness become a defendant, would be followed by broad discovery of government materials gives the witness as much protection as can be reconciled with expeditious handling of the grand jury. This is not the proper forum for declarations on the validity of wiretaps which are not directly related to the proceeding. Appellant argues briefly on appeal that the affidavit supporting E.B.D. 71 — 98 was in part based on evidence obtained from a prior tap on another’s telephone. In the district court, however, although one paragraph of a 23 paragraph motion for discovery related to the same tap, the claim argued to the court was that since E.B.D. 71 — 98 was the result of a “cumulative investigation”, appellant was entitled to discovery of all taps relating to that investigation from 1968 to 1974. Such a blanket inquiry we deem foreclosed by Calandra, supra. As to whether or not a “mother tap” appears sufficiently relevant as to require its discovery in proceedings relating to a subsequent tap, we imply no opinion, agreeing with the government that the issue was not raised with" }, { "docid": "11651005", "title": "", "text": "of Narcotics and Dangerous Drugs, and the F.B.I. and found that no electronic surveillance had been conducted. The Beverly court concluded that § 3504 was satisfied by the government attorney’s affidavit containing the “conclusory statement” that an inquiry of “appropriate Federal Government agencies” revealed no electronic surveillance of the complaining party. While we noted that this affidavit in Beverly was “far from a ‘model’ either in terms of its scope or forthrightness,” we rejected the witness’s contention that the procedure followed in Tierney — an affidavit specifying by name the agencies checked, with the affiant subject to cross examination — was the sine qua non of an effective § 3504 denial. 468 F.2d at 744-45. The appellant’s reliance on Tierney and Beverly is clearly misplaced. A significant aspect of both those decisions is their failure to specify any indispensable ingredients of an effective § 3504 denial. While as in Beverly, the government’s general and unsworn response may not be a “model”, it is not necessarily fatally defective. Since this court has not yet formulated precise standards for measuring the validity of a § 3504 response, we turn for guidance to the recent pronouncements of other circuits. Decisions in the First, Third and Ninth Circuits indicate that the imprecise language of § 3504 permits non-specific denials,- especially when the party asserting illicit surveillance makes a general, unsubstantiated allegation of unlawfulness. In In re Mintzer, 511 F.2d 471 (1st Cir. 1975) [No. 74-1388, Dec. 26, 1974], the First Circuit rejected a grand jury witness’s assertion that a valid § 3504 denial must be based on a thorough search of federal and state records to determine the possible existence of unlawful surveillance. According to that court, [w]hile we think this, at least as to federal authorities, is a salutary practice, and may be mandated in other contexts, see Gelbard v. United States, 408 U.S. 41, 56 [92 S.Ct. 2357, 33 L.Ed.2d 179] (1972), we also think that at this proceeding all that can be required is that those conducting the grand jury proceeding affirm that they have no knowledge of and have not" }, { "docid": "13270582", "title": "", "text": "23, 24). Shoher’s car (note 2, para. 18) had been seen parked at this address (note 2, paras. 25, 26). 2. We agree with the district court that appellant failed to make a sufficient showing to require the government to affirm or deny that his counsel’s telephone had been tapped. Assuming the showing was sufficient to establish electronic surveillance had occurred, nothing offered suggested any connection between the claimed surveillance and this proceeding, as required by United States v. Alter, 482 F.2d 1016, 1026 (9th Cir. 1973). See United States v. Vielguth, 502 F.2d 1257, 1260 (9th Cir. 1974); United States v. See, 505 F.2d 845, 856 (9th Cir. 1974). The only possibly relevant showing concerned a telephone conversation between counsel and appellant’s wife, but the affidavits revealed that this conversation occurred many months before the murder and related to legal problems concerning children who were living with the Bowers. Since the appellant made no showing requiring a government response, he cannot complain because the government voluntarily furnished certain tapes to the court for in camera inspection. United States v. See, supra. 3. Appellant contends that the prosecution was guilty of misconduct in failing to reveal that a prosecution witness had committed perjury before the grand jury. Witness Darnell Phillips testified before the grand jury that Alan Veale told him, “We [Veale and Bowers] shot the ranger.” Phillips later testified (at a trial other than appellant’s) that Veale told him “Daoud [Bowers] shot him.” Assuming United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974), applies, the failure of the prosecutor to notify the court and the grand jury of the change in Phillips’ testimony was harmless beyond any doubt. Both versions of Phillips’ testimony implicated Bowers. Appellant’s counsel was aware of the alleged perjury well before trial, but made no motion to dismiss the indictment. 4. A government witness was allowed to testify that he had made a microscopic comparison of one of the bullets found in the ranger’s body with a bullet found in appellant’s attache case and that in his expert opinion the marks on these" }, { "docid": "17940512", "title": "", "text": "or deny” incorporates a requirement to search central federal records and all state records. Further, that once the wiretaps have been revealed, the grand jury witness must be given an opportunity to develop a case that some of the taps (presumably those shown to be illegal under Lochiatto) are “arguably relevant” to the questions posed. These arguments are premised on the language of 18 U.S.C. § 3504(a)(1): “upon a claim of a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by ex ploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act?’. [Emphasis supplied.] and 18 U.S.C. § 2518(10)(a): “any aggrieved person . . . may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom if We think that in a grand jury proceeding, the policies articulated in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), foreclose the broad inquiry argued by appellant. Logical development of the Supreme Courts concern for expeditious grand jury proceedings precludes mini-trials on each witness’ rights; witnesses cannot be entitled to unlimited evidentiary exploration. In Lochiatto we indicated that the resolution of the legality of the wiretap was for the judge but that (unlike the trial situation) investigation of the legality for these purposes and in this type of proceeding would be confined to facial violations or error in the authorizations or legal invalidity that appears from a limited exploration. Lochiatto, 497 F.2d at 808. Appellant argues that we should interpret “primary product” or “evidence . . . obtained by exploitation”, § 3504(a)(1), or “contents of an intercepted wiretap”, § 2518(10)(a), to require a judicial determination of “arguable relevancy” of the content of taps, other than the ones the United States Attorney avers were used, to questions formulated. A similar inquiry, appellant argues, was mandated in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). But Alderman was a post-conviction case exploring the" }, { "docid": "15099999", "title": "", "text": "U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972); In re Grand Jury Proceedings, 786 F.2d 3, 7 (1st Cir.1986) (per curiam). . As here applicable, 18 U.S.C. § 3504(a) requires that, \"upon a claim\" by a grand jury witness that the questioning is based on illegal electronic surveillance, \"the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful\" surveillance. .In their affidavits, described more fully below, the several government investigators and attorneys characterize the 1985 surveillance as \"court-authorized.\" They also indicate that information derived therefrom was subsequently used at the trial of appellant's father (resulting in his conviction for narcotics offenses) — with the implication that the surveillance was determined to have been legal. The authorizing documents, however, have not been turned over to appellant for inspection as required by In re Lochiatto, 497 F.2d 803, 807-08 (1st Cir.1974); see also In re Grand Jury, 851 F.2d 499, 500 (1st Cir.1988) (per curiam); In re Mintzer, 511 F.2d 471, 472 n. 1 (1st Cir.1974) (per curiam), and no effort has been made to document any judicial finding of legality. . According to their affidavits, Agent Horan and Sergeant McGreal have had principal responsibility within their respective agencies for this investigation since its inception; no other governmental agency has contributed information to the instant investigation or participated in the preparation for the grand jury proceedings. AUSA Schwartz conducted the grand jury investigation until September 5, 1990, at which time AUSA Herbert took over. . Under 28 U.S.C. § 1826(b) and Loc.R. 9, appeals of orders of confinement for civil contempt are to be decided within thirty days of filing. As has occasionally been the case in the past, see United States v. Doe, 460 F.2d 328, 332 n. 3 (1st Cir.1972), this deadline has not been met here. The thirty-day limit is nonjurisdic-tional. See, e.g., In re Grand Jury Proceedings, 757 F.2d 108, 110 n. 1 (7th Cir.) (collecting cases), cert. denied, 471 U.S. 1018, 105 S.Ct. 2025, 85 L.Ed.2d 306 (1985). Some courts have a practice of releasing confined contemnors whose appeals cannot be" } ]

[ { "docid": "354818", "title": "", "text": ". 442 I. BACKGROUND Plaintiffs in this matter, all citizens of Zimbabwe, brought suit alleging violations of the Alien Tort Claims Act (the “ATCA”), the Torture Victim Protection Act (the “TVPA”) , fundamental norms of international human rights law, and Zimbabwe law. In a Decision and Order dated October 30, 2001, the Court dismissed on jurisdictional grounds Plaintiffs’ claims naming as defendants Zimbabwe President Robert Mugabe (“Mugabe”) and other Zimbabwe government officials entitled to invoke sovereign or diplomatic immunity. But the Court found a sufficient basis to exercise jurisdiction over the claims asserted against the Zimbabwe African National Union-Patriotic Front “ZANU-PF,” the country’s ruling party, through process personally served on Mugabe, who is also ZANU-PF’s titular head. ZANU-PF failed to answer the complaint or otherwise appear in the case and a default judgment was entered against it. The Court then referred the matter to Magistrate Judge James C. Francis, IV for an inquest on damages. ZANU-PF did not appear in that proceeding as well. Consequently, the Magistrate Judge issued a Report and Recommendation on July 1, 2002 (the “Report”) recommending awards of damages on Plaintiffs’ claims under both the ATCA and the TVPA. The Court, in a Decision and Order dated August 7, 2002, adopted the Report’s factual findings and determination of damages relating to the torture and extrajudicial killing claims under the TVPA, but reserved judgment as to the award recommended under the ATCA. With regard to the ATCA claims, the Court determined that under its reading of applicable Second Circuit doctrine, as articulated in Filartiga v. Pena-Irala, it was required to perform a choice of law analysis to determine the appropriate substantive law governing the adjudication of ATCA disputes alleging human rights abuses. The Second Circuit recently reiterated this approach. In dictum in Wiwa v. Royal Dutch Petroleum Co., the court construed Filartiga I to hold that the “ATCA establishes cause of action for violations of international law but requiring the district court to perform a traditional choice-of-law analysis to determine whether international law, law of forum state, or law of state where events occurred should provide substantive" } ]

[ { "docid": "2678093", "title": "", "text": "for the Alien Tort Statute is the law of nations, which has always been part of the federal common law” Id. at 885, and that “courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.” Id. at 881. “[EJvolving standards of international law govern who is within the [Alien Tort Act’s] jurisdictional grant.” Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 425 (2nd Cir.1987), rev’d on other grounds, 488 U.S. 428, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Depending upon the nature of the offense, an ATCA claim may be brought against private individuals as well as state actors. Kadic v. Karadzic, 70 F.3d 232 (2nd Cir.1995), cert. denied, 518 U.S. 1005, 116 S.Ct. 2524, 135 L.Ed.2d 1048 (1996). Many courts have concluded that the ATCA provides both jurisdiction and a cause of action for claims under customary international law. See Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir.1996); In re Estate of Marcos, Human Rights Litigation (“Marcos II”), 25 F.3d 1467, 1474-75 (9th Cir.1994); Xuncax v. Gramajo. 886 F.Supp. 162, 179 (D.Mass.1995); Paul v. Avril, 812 F.Supp. 207, 212 (S.D.Fla.1993); See also Tel-Oren (Edwards, J. concurring in decision to deny jurisdiction, but recognizing that the ATCA provides a cause of action under international law). Not all jurists interpret the ATCA as broadly as these courts and the Court of Appeals for the Second Circuit, see Judge Bork’s concurring opinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). However, Congress has left untouched the Filartiga approach even as it legislated in this field. The Torture Victim Act, enacted in 1992, for example, creates a cause of action for official torture and extrajudicial killing. “Congress enacted the Torture Victim Act to codify the cause of action recognized by this Circuit in Filartiga, and to further extend that cause of action to plaintiffs who are U.S. citizens”. Kadic, 70 F.3d at 241. The reasoning of Filartiga and cases which have" }, { "docid": "16403093", "title": "", "text": "U.S. citizens who may have been tortured abroad. Official torture and summary executions merit special attention in a statute expressly addressed to those practices. At the same time, claims based on torture or summary executions do not exhaust the list of actions that may appropriately be covered [by] section 1350. That statute should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law. H.R. Rep No. 102-376(1), at 4. The Senate Report on the TVPA casts the Act in the same light, using virtually identical language. See S.Rep. No. 102-249, at 5. The majority’s contention that the TVPA would be “meaningless” if it did not preempt the ATCA is therefore incorrect — the TVPA still serves its purpose of filling a gap in the ATCA’s coverage by providing a cause of action for American citizens for certain human rights violations. In this respect the TVPA does not even purport to “occupy the entire field” (as the majority claims) and, as Congress itself made clear, the ATCA was to remain intact to function as before. The two acts thus are not competing provisions but are meant to be complementary and mutually reinforcing (if somewhat coextensive). Federal courts addressing this specific issue have ruled accordingly, holding that the TVPA does not restrict the scope and coverage of the ATCA. See, e.g., Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir.1995) (“The scope óf Alien Tort Act remains undiminished by enactment of the Torture Victim Act”); Flores v. S. Peru Copper Corp., 343 F.3d 140, 153 (2d Cir.2003) (recognizing that “the TVPA reaches conduct that may also be covered by the ATCA”); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 168-69 (5th Cir.1999) (considering separately claims under the ATCA and TVPA that are “essentially predicated on the same claims of individual human rights abuses”); Abebe-Jira v. Ne- gewo, 72 F.3d 844, 848 (11th Cir.1996) (citing the TVPA as confirmation that the ATCA itself confers a private right of action); Hilao v. Estate of Marcos, 108 F.3d 767, 778-79 (9th Cir.1996)" }, { "docid": "16403088", "title": "", "text": "however, no need for the court to reach difficult questions such as the relationship between the two statutes when the plaintiffs complaint failed entirely. Further, that the ATCA confers a private right of action is not contested in the case before us (as it was in Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996)), nor is the fact that one interpretation of the Torture Victim Protection Act is that it codified existing law, especially as set out in Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir.1980). In short, we think that the law on the issue before us is far from settled in the courts of appeals, but that the Supreme Court in Sosa offers us the best guidance as to what the relationship between these two statutes should be. CUDAHY, Circuit Judge, dissenting in part. The majority remands this case because, though General Abubakar may not claim sovereign immunity for alleged human rights abuses, “[t]he plaintiffs before us have not pled under the Torture Victim Protection Act and nothing in the record indicates that they'have exhausted their remedies.” Maj. Op. at 886. While I agree that the defendant General Abuba-kar ultimately cannot claim sovereign immunity for the acts of torture and extrajudicial killing alleged in this case, I cannot agree that plaintiffs’ suit is precluded by their failure to bring a claim under the Torture Victim Protection Act of 1991 (TVPA) or by their failure to exhaust legal remedies in Nigeria. The Relationship Between the ATCA and the TVPA The majority’s opinion raises an important legal question: whether the TVPA, 28 U.S.C. § 1350, note, P.L. 102-256, effectively restricts or precludes an alien’s ability to bring claims for torture or extrajudicial killing under the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350. A host of factors strongly indicate that it does not. First, both the plain text and the legislative history of the TVPA indicate that it was meant to expand, not restrict, the remedies available under the ATCA. The text of the TVPA itself contains no implicit or explicit repeal of the ATCA, nor does it indicate" }, { "docid": "10008269", "title": "", "text": "Court distinguished previous ATCA cases on the ground that “earlier cases did not involve such well-established, universally recognized norms of international law that are here at issue.” Id. at 888. It held that conduct violates such norms of customary international law “only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords[.]” Id. (citing Vencap, 519 F.2d at 1015) (emphases added). The Filartiga Court concluded that acts of torture committed by State officials violate “established norms of the international law of human rights, and hence the law of nations.” Filartiga, 630 F.2d at 880. Although Filartiga involved ' only the conduct of State officials, since then another panel of our Court held, in Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995), that ATCA claims may sometimes be brought against private actors. The Court concluded in Kadic that certain activities are of “universal concern” and therefore constitute violations of customary international law not only when they are committed by state actors, but also when they are committed by private individuals. Kadic, 70 F.3d at 239-40. In particular, it determined that acts of piracy, slave trading, war crimes, and genocide violate customary international law regardless of whether they are undertaken by state or private actors, whereas acts of official torture and “summary execution” constitute violations of customary international law only when committed by state officials or under color of law. Kadic, 70 F.3d at 239-43 . 2. Reception of Filartiga ■ FilaHtga’s interpretation of the ATCA as permitting private- causes of action for recently identified violations of customary international law has been controversial. The Ninth and Eleventh Circuits have followed Filartiga in recognizing a private cause of action under the ATCA. See Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir.1996) (holding that “the Alien Tort Claims Act establishes a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law”); Hilao v. Estate of Marcos (In re Estate of Ferdinand Marcos, Human Rights Litig.), 25 F.3d 1467, 1475" }, { "docid": "19762851", "title": "", "text": "ch. 20, § 9(b), 1 Stat. 73, 76-77 (codified, as amended, at 28 U.S.C. § 1350 (2000)). After slight modifications, the ATS provides in its entirety: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. During the first 191 years of its existence, the ATS lay effectively dormant. In fact, during the nearly two centuries after the statute’s promulgation, jurisdiction was maintained under the ATS in only two cases. The earliest case to find jurisdiction under the ATS, Bolchos v. Darrel, 3 F.Cas. 810 (D.S.C.1795) (No. 1,607), employed the ATS as an alternative basis for jurisdiction to uphold the capture of Black slaves from an enemy ship at sea and to order the return of the slaves or the money arising from their sale by a libelee who had subsequently seized and sold the enslaved people. Although the first case employing the ATS used the statute to perpetuate the inhumane institution of slavery, beginning in 1980 with the seminal case Filartiga v. Pena-Irala, the ATS has been utilized to address egregious international human rights abuses in the federal courts. 630 F.2d 876 (2d Cir.1980) (holding that torture perpetrated under the color of law violates universally accepted norms of international law, and thus the ATS provides federal jurisdiction when an alleged torturer is found and served with process by an alien within the borders of the United States); see also, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996) (suit brought by ex-prisoners against a quondam governmental official of a former Ethiopian military dictatorship for torture); Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995) (action brought by Croat and Muslim victims from Bosnia-Herzegovina against self-proclaimed president of an unrecognized Bosnian-Serb entity for genocidal campaign of murder, rape, forced impregnation and prostitution, and torture); In re Estate of Marcos Human Rights Litig., 25 F.3d 1467 (9th Cir.1994) (lawsuit brought by families of victims of torture, summary execution, and disappearances against former president of the" }, { "docid": "5568710", "title": "", "text": "See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105, n. 10 (2d Cir.2000) (\"[T]he text of the [ATCA] seems to reach claims for international human rights abuses occurring abroad. We reached the conclusion that such claims are properly brought under the Act in Filartiga ...; Congress ratified our conclusion by passing the Torture Victim Protection Act”); Alvarez-Machain, supra, 107 F.3d at 702 (\"The Torture Victim Protection Act does not impose new duties or liabilities on defendants. Torture has long been condemned and prohibited by international law,” citing Filartiga, supra, 630 F.2d 876); Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir.1996) (\"In enacting the TVPA, Congress endorsed the Filartiga line of cases: The TVPA would establish an unambiguous and modern basis for a cause of action that has been successfully maintained under an existing law, section 1350 of the Judiciary Act of 1789 (the Alien Tort Claims Act), which permits Federal district courts to hear claims by aliens for torts committed in violation of the law of nations,” quoting H.R.Rep. No. 367, 102d Cong., 2d Sess. 3, reprinted in 1992 U.S.C.C.A.N. 84, 86 (internal quotations omitted)); H.R.Rep. No. 367, supra, at 4 (noting that codification of Filartiga was necessary given the skepticism expressed by Judge Bork in his concurring opinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir. 1984), cert, denied, 470 U.S. 1003, 105 S.Ct 1354, 84 L.Ed.2d 377 (1985)). . Unlike the ATCA, the TVPA is not a jurisdictional statute. Thus, to state a claim under the TVPA, a plaintiff must first establish jurisdiction under the ATCA or properly invoke federal question jurisdiction under 28 U.S.C. § 1331. See Kadic, supra, 70 F.3d at 246. . Defs.' Mem. at 12:23-25. . See First Amended Complaint, ¶¶ 210-66. . Pis.’ Opp. at 33:20-22 (noting that no court has \"interpreted [the] ATCA [to] re-quir[e] exhaustion of local remedies as a prerequisite to a civilian plaintiff bringing an otherwise valid claim in the U.S.”). . See also The Torture Victim Protection Act: Hearing on H.R. 1417 Before the Sub-comm. on Human Rights and International Organizations of the" }, { "docid": "5568709", "title": "", "text": "Alien Tort Statute. . See Defendants’ Memorandum of Points and Authorities in Support of Motion to Dismiss (\"Defs.’ Mem.”) at 9-25. . See ¿d. at 9-10. . See Plaintiffs' Memorandum of Point and Authorities in Opposition to Motion to Dismiss (\"Pis.’ Opp.”) at 14-39. . See Defs.' Mem. at 12-14. . Id. at 12:16-20 (quoting Restatement (Third) of the Foreign Relations Law of the United States (\"Restatement”), § 703, cmt. d (1986)). . Following its passage in 1789 as part of the first Judiciary Act, and prior to the Second Circuit's 1980 decision in Filartiga, supra, there were only twenty-one reported decisions under the ATCA. See Kenneth C. Randall, Federal Jurisdiction over International Law Claims: Inquiries Into the Alien Tort Claims Statute, 18 N.Y.U.J. Int'l. L. & Pol. 1, 4-5, n. 15 (1985). Filartiga was thus the seminal case interpreting the Act. It held that two Paraguayans could bring an ATCA claim against a former Paraguayan police inspector for the torture and death of one of their family members. The TVPA codified the Fi-lartiga decision. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105, n. 10 (2d Cir.2000) (\"[T]he text of the [ATCA] seems to reach claims for international human rights abuses occurring abroad. We reached the conclusion that such claims are properly brought under the Act in Filartiga ...; Congress ratified our conclusion by passing the Torture Victim Protection Act”); Alvarez-Machain, supra, 107 F.3d at 702 (\"The Torture Victim Protection Act does not impose new duties or liabilities on defendants. Torture has long been condemned and prohibited by international law,” citing Filartiga, supra, 630 F.2d 876); Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir.1996) (\"In enacting the TVPA, Congress endorsed the Filartiga line of cases: The TVPA would establish an unambiguous and modern basis for a cause of action that has been successfully maintained under an existing law, section 1350 of the Judiciary Act of 1789 (the Alien Tort Claims Act), which permits Federal district courts to hear claims by aliens for torts committed in violation of the law of nations,” quoting H.R.Rep. No. 367, 102d" }, { "docid": "19138853", "title": "", "text": "briefs analyzing the applicable law of Zimbabwe underlying the ATCA claims. In the alternative, Plaintiffs may choose to accept the award of damages for the claims under the TVPA. III. CONCLUSION AND ORDER Accordingly, it is hereby ORDERED that Plaintiffs shall inform the Court by letter no later than August 21, 2002, whether they intend to submit additional briefs on the issues set forth above. If Plaintiffs elect to submit additional briefs, their letter shall also set forth a proposed briefing schedule. If, however, Plaintiffs elect to forego additional briefing and accept the award of damages under the TVPA, the Court shall promptly enter judgment accordingly. SO ORDERED. REPORT AND RECOMMENDATION FRANCIS, United States Magistrate Judge. The plaintiffs, Adella Chiminya Tachio-na, Tapfuma Chiminya Tachiona, Efridah Pfebve, Metthew Pfebve, Elliot Pfebve, Evelyn Masaiti, Maria Del Carmen Stevens, and David Yendall Stevens (“plaintiffs”), bring this action against the Zimbabwe African National Union Patriotic Front (“ZANU-PF”), the Zimbabwe government’s ruling political party. The plaintiffs allege that the defendant, through its officers, planned and executed a campaign of violence designed to intimidate and suppress political opposition in violation of the Alien Tort Claims Act (the “ATCA”), 28 U.S.C. § 1350, the Torture Victim Protection Act (the “TVPA”), Pub.L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 Note), and fundamental norms of international human rights law. Specifically, the acts alleged by the plaintiffs include: (1) politically motivated, extrajudicial killing; (2) torture; (3) the use of terror and violence to violate freedom of thought and political opinion; (4) the use of terror and violence to interfere with freedom of association; (5) cruel, inhuman, and degrading treatment; (6) racial discrimination; and (7) the unlawful seizure or destruction of property. The complaint was properly served on the defendant, ZANU-PF, on September 8, 2000, through personal service on Robert Mugabe, its principal officer, but the defendant has failed to appear in the case. An order of default was entered on October 30, 2001, Tachiona, 169 F.Supp.2d 259, and a motion by the United States government for reconsideration of that order was denied on February 14," }, { "docid": "21855361", "title": "", "text": "the symbiotic relationship between, the defendants, the paramilitaries, and the Colombian military. Such a factual inquiry is “more easily resolved on summary judgment than on a motion to dismiss because the court must review the facts and ‘circumstances surrounding the challenged action in their totality.’ ” National Coalition Gov’t of the Union of Burma v. Unocal, 176 F.R.D. 329, 346 (C.D.Cal.1997) (citing Collins v. Womancare, 878 F.2d 1145, 1150 (9th Cir.1989)). Therefore, having found that the union is an alien, has adequately alleged an actionable tort for denial of the fundamental rights to associate and organize, and has adequately alleged state action, the court denies Defendants’ Motion to Dismiss as to the union’s ATCA claim in Count Three of the First Amended Complaint. 4. The Torture Victim Protection Act In Count Two of the First Amended Complaint, the union asserts a claim under the Torture Victim Protection Act for the extrajudicial killing of the union leaders. Congress passed the Torture Victim Protection Act of 1991 (“TVPA”), Pub.L. No. 1020256, 106 Stat. 73 at Historical and Statutory Notes to 28 U.S.C. § 1350, to “establish an unambiguous and modern basis for a cause of action that has been successfully maintained under an existing law, section 1350 of the Judiciary Act of 1789 (the Alien Tort Claims Act), which permits Federal district courts to hear claims by aliens for torts committed ‘in violation of the law of nations.’” Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir.1996) (citing H.R.Rep. No. 367, 102d Cong., 2d Sess. 3, reprinted in 1992 U.S.C.C.A.N. 84, 86). The TVPA creates civil liability for any “individual who, under actual or apparent authority, or color of law, of any foreign nation ... subjects an individual to extrajudicial killing.” 28 U.S.C. § 1350, note, § 2(a)(2). Individuals are liable for extrajudicial killing to the deceased’s “legal representative or to any person who may be a claimant in an action for wrongful death.” Id. a. The TVPA Applies to Corporations To state a claim under the TVPA, a plaintiff must allege (1) that the individual defendant acted under color of law," }, { "docid": "22239366", "title": "", "text": "a role in the balancing of the Gilbert factors. The Alien Tort Claims Act was adopted in 1789 as part of the original Judiciary Act. In its original form, it made no assertion about legal rights; it simply asserted that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. For almost two centuries, the statute lay relatively dormant, supporting jurisdiction in only a handful of cases. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 887 & n. 21 (2d Cir.1980) (identifying only two previous cases that had relied upon the ATCA for jurisdiction). As the result of increasing international concern with human rights issues, however, litigants have recently begun to seek redress more frequently under the ATCA. See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996) (alleging torture of Ethiopian prisoners); Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995) (alleging torture, rape, and other abuses orchestrated by Serbian military leader); In re Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir.1994) (alleging torture and other abuses by former President of Phillippines); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984) (alleging claims against Libya based on armed attack upon civilian bus in Israel); Filartiga, 630 F.2d 876 (alleging torture by Paraguayan officials); Xuncax v. Gramajo, 886 F.Supp. 162 (D.Mass.1995) (alleging abuses by Guatemalan military forces). These suits produced several important decisions interpreting the meaning and scope of the 1789 Act. For example, in Filartiga v. Pena-Irala, 630 F.2d at 880, 884-86, this court held that deliberate torture perpetrated under the color of official authority violates universally accepted norms of international human rights law, and that such a violation of international law constitutes a violation of the domestic law of the United States, giving rise to a claim under the ATCA whenever the perpetrator is properly served within the borders of the United States. More recently, we held in Kadic v. Karadzic, 70 F.3d at 239-40, 245, that the ATCA reaches the" }, { "docid": "19762852", "title": "", "text": "perpetuate the inhumane institution of slavery, beginning in 1980 with the seminal case Filartiga v. Pena-Irala, the ATS has been utilized to address egregious international human rights abuses in the federal courts. 630 F.2d 876 (2d Cir.1980) (holding that torture perpetrated under the color of law violates universally accepted norms of international law, and thus the ATS provides federal jurisdiction when an alleged torturer is found and served with process by an alien within the borders of the United States); see also, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996) (suit brought by ex-prisoners against a quondam governmental official of a former Ethiopian military dictatorship for torture); Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995) (action brought by Croat and Muslim victims from Bosnia-Herzegovina against self-proclaimed president of an unrecognized Bosnian-Serb entity for genocidal campaign of murder, rape, forced impregnation and prostitution, and torture); In re Estate of Marcos Human Rights Litig., 25 F.3d 1467 (9th Cir.1994) (lawsuit brought by families of victims of torture, summary execution, and disappearances against former president of the Phillip-pines). The ATS holds great potential to bring justice to certain serious violations of human, civil, and environmental rights in a federal forum. However, the ATS, by no means, supplies jurisdiction over every wrong committed against an alien. In cases — such as the one at bar — where the alleged tort purportedly arises under the law of nations, rather than a treaty of the United States, the Supreme Court has directed the lower courts to exercise “great caution in adapting the law of nations to private rights.” Sosa v. Alvarez-Machain, 542 U.S. 692, 728, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). In Sosa, the Supreme Court, for the first time, set forth a framework to determine whether a cause of action falls within the purview of the ATS. Id. at 725, 124 S.Ct. 2739. The Court, relying on Blackstone’s Commentaries on the Laws of England, found that at the time the ATS was enacted only three actions were generally recognized as infractions of the law of nations: piracy, offenses against ambassadors, and violations of" }, { "docid": "22239365", "title": "", "text": "v. National Westminster Bank, P.L.C., 155 F.3d 603, 611-12 (2d Cir.1998), cert. denied, 526 U.S. 1067, 119 S.Ct. 1459, 143 L.Ed.2d 545 (1999) (real parties in interest were English corporations); PT United Can, 138 F.3d at 74 (plaintiff was an Indonesian corporation); In re Union Carbide, 809 F.2d at 198 (plaintiffs were Indian citizens and residents). We have never accorded less deference to a foreign plaintiffs choice of a United States forum where that plaintiff was a U.S. resident. In short, the district court applied an incorrect standard of law when it failed to credit the fact that two of the plaintiffs were United States residents as a consideration favoring plaintiffs choice of a U.S. forum. (2) The Application of Forum Non Conve-niens Doctrine to ATCA Cases The plaintiffs also argue that the ATCA, as supplemented by the Torture Victim Prevention Act (TVPA), 28 U.S.C. § 1350 App., in 1991, reflects a United States policy interest in providing a forum for the adjudication of international human rights abuses, and that this policy interest should have a role in the balancing of the Gilbert factors. The Alien Tort Claims Act was adopted in 1789 as part of the original Judiciary Act. In its original form, it made no assertion about legal rights; it simply asserted that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. For almost two centuries, the statute lay relatively dormant, supporting jurisdiction in only a handful of cases. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 887 & n. 21 (2d Cir.1980) (identifying only two previous cases that had relied upon the ATCA for jurisdiction). As the result of increasing international concern with human rights issues, however, litigants have recently begun to seek redress more frequently under the ATCA. See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996) (alleging torture of Ethiopian prisoners); Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995) (alleging torture, rape, and other abuses orchestrated" }, { "docid": "9398632", "title": "", "text": "plain language of the [ATCA] and the use of the words ‘committed in violation’ strongly implies that a well pled tort[,] if committed in violation of the law of nations, would be sufficient [to give rise to a cause of action].”); But see Tel-Oren, 726 F.2d at 810-20 (Bork, J., concurring). The only case in this Circuit addressing the issue, Jama, followed this line of cases in holding that the ATCA provides both subject matter jurisdiction and a cause of action for violations of the law of nations. See Jama, 22 F.Supp.2d at 363. The Jama Court noted that, after the Second Circuit’s decision in Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir.1980) ; Congress could have amended the ATCA when it enacted the Torture Victim Protection Act of 1991 (“TVPA”) to reflect its dis agreement with the courts’ interpretation of the ATCA. See Jama, 22 F.Supp.2d at 363. Indeed, the TVPA is codified as a statutory note to the ATCA. See supra note 22. Congress, however, did not address whether the ATCA provides a private cause of action for violations of international law although it enacted the TVPA to codify the cause of action (torture) recognized in Filartiga under the ATCA. See Kadic, 70 F.3d at 241. The Eleventh Circuit, persuaded by both Congress’ silent endorsement of Fi-lartiga and subsequent interpretations of the ATCA, also found that the ATCA provides a private right of action. See Abebe-Jira, 72 F.3d at 848. The Abebe-Jira Court noted that the legislative history indicated that Congress was aware that [t]he TVPA would establish an unambiguous and modern basis for a cause of action that has been successfully maintained under an existing law, section 1350 of the Judiciary Act of 1789 [the ATCA], which permits Federal district courts to hear claims by aliens for torts committed in violation of the law of nations. Abebe-Jira, 72 F.3d at 848 (quoting H.R.Rep. No. 367, 102d Cong., 2d Sess. 3, reprinted in 1992 U.S.C.C.A.N. 84, 86). Based on this statement, the Abebe-Jira Court concluded that Congress recognized that courts viewed the ATCA as conferring both a forum" }, { "docid": "14411517", "title": "", "text": "means of express international accords[.]” Id. (citing Vencap, 519 F.2d at 1015) (emphases added). The Filartiga Court concluded that acts of torture committed by State officials violate “established norms of the international law of human rights, and hence the law of nations.” Filartiga, 630 F.2d at 880. Although Filartiga involved only the conduct of State officials, since then another panel of our Court held, in Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995), that ATCA claims may sometimes be brought against private actors. The Court concluded in Kadic that certain activities are of “universal concern” and therefore constitute violations of customary international law not only when they are committed by state actors, but also when they are committed by private individuals. Kadic, 70 F.3d at 239-40. In particular, it determined that acts of piracy, slave trading, war crimes, and genocide violate customary international law regardless of whether they are undertaken by state or private actors, whereas acts of official torture and “summary execution” constitute violations of customary international law only when committed by state officials or under color of law. Kadic, 70 F.3d at 239-43 . 2. Reception of Filartiga Filartiga’s interpretation of the ATCA as permitting private causes of action for recently identified violations of customary international law has been controversial. The Ninth and Eleventh Circuits have followed Filartiga in recognizing a private cause of action under the ATCA. See Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir.1996) (holding that “the Alien Tort Claims Act establishes a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law”); Hilao v. Estate of Marcos (In re Estate of Ferdinand Marcos, Human Rights Litig.), 25 F.3d 1467, 1475 (9th Cir.1994) (“We thus join the Second Circuit in concluding that the [ATCA] creates a cause of action for violations of specific, universal and obligatory international human rights standards[.]”). However, the District of Columbia Circuit has criticized Filartiga in concurring opinions in both Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984) (Bork, J., concurring, and Robb, J., concurring), and Al Odah v. United" }, { "docid": "14411523", "title": "", "text": "Hess, 488 U.S. at 434-35, 109 S.Ct. 683. Nor has Congress wholly clarified the scope and meaning of the ATCA. However, following our Court’s decision in Filartiga, Congress did pass the Torture Victim Protection Act of 1991 (“TVPA”), Pub.L. No. 102-256, 106 Stat. 73 (enacted March 12, 1992) (codified as Note to 28 U.S.C. § 1350), which created a cause of action for individuals subjected to official torture or extrajudicial executions. The TVPA is appended as a statutory note to the ATCA, codified at 28 U.S.C. § 1350. The TVPA reaches conduct that may also be covered by the ATCA, but the TVPA “enhancefs] the remedy already available under the [ATCA] in an important respect: while the [ATCA] provides a remedy to aliens only, the TVPA ... extend[s] a civil remedy also to U.S. citizens who may have been tortured abroad.” S.Rep. No. 102-249, at 5 (1991). The Senate Report on the TVPA states that the statute was intended to “establish an unambiguous basis for a cause of action that hás been successfully maintained under [the ATCA,] ... which permits Federal district courts to hear claims by aliens for torts committed ‘in violation of the law of nations.’ ” Id. at 4. The Report specifically referred to Filartiga and noted that “[t]he Filartiga case has met with general approval.” Recognizing that “[a]t least one Federal judge ... has questioned whether [the ATCA] can be used by victims of torture committed in foreign nations absent an explicit grant of a cause of action by Congress,” id. (citing Tel-Oren, 726 F.2d at 774 (Bork, J., concurring)), the Senate Report concluded that “[t]he TVPA would provide such a grant,” id. at 5. Our Court has concluded that Congress intended to ratify our holding in Filartiga with respect to torture by passing the TVPA. See Kadic, 70 F.3d at 241; Kadic, 74 F.3d at 378 (denying petition for rehearing); see also Hilao, 25 F.3d at 1475-76; Abebe-Jira, 72 F.3d at 848. Others have suggested that the TVPA actually created a cause of action independent of the ATCA, and that such a cause of action" }, { "docid": "12395910", "title": "", "text": "3-4 (1991). Further, the TVPA extended the civil remedy to United States citizens. S.Rep. No. 102-249, p. 3 (1991); H.R.Rep. No. 367, p. 3 (1991). 201. As the U.S. Supreme Court recently stated in Sosa, “[A] clear mandate appears in the Torture Victim Protection Act of 1991, 106 Stat. 73, providing authority that ‘establishes] an unambiguous and modern basis for’ federal claims of torture and extrajudicial killing.” H.R.Rep. No. 102-367, pt. 1, p. 3 (1993); Sosa, 124 S.Ct. at 2763. 202. The TVPA states: 2.(a) An individual who, under actual or apparent authority, or color of law, of any foreign nation ... (2) subjects an individual to an extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death. 28 U.S.C. § 1350 (note). 203. Although the TVPA provides a statutory basis for a claim for extrajudicial killing, the enactment of the TVPA did not diminish the scope of the ATCA in any way. Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir.1995) (“[t]he scope of the Alien Tort Act remains undiminished by enactment of the Torture Victim Act.”); see also Wiwa v. Royal Dutch Petroleum Company, No. 96 CIV.8386, 2002 WL 319887, *4 (S.D.N.Y. Feb.28, 2002) (“This Court reads Kadic I to hold that the TVPA did not preempt torture and summary execution claims under the ATCA.... In fact, no court that has evaluated ATCA claims since the enactment of the TVPA has held that the TVPA in any way preempts ATCA claims for torture and extrajudicial killings .... [T]he TVPA simply provides an additional basis for assertion of claims for torture and extrajudicial killing.”); see also S.Rep. No. 102-249, p. 3 (1991) (“The ATCA has ... important uses and should not be replaced”); accord H.R.Rep. No. 102-367, p. 3 (1991). Plaintiff may assert a claim for extrajudicial killing under both the TVPA and ATCA. B. Plaintiff Has Standing to Bring This Action Under the TVPA and ATCA. (1) TVPA. 204. [REDACTED] 205. [REDACTED] 206. [REDACTED] (2) ATCA. 207." }, { "docid": "9398633", "title": "", "text": "private cause of action for violations of international law although it enacted the TVPA to codify the cause of action (torture) recognized in Filartiga under the ATCA. See Kadic, 70 F.3d at 241. The Eleventh Circuit, persuaded by both Congress’ silent endorsement of Fi-lartiga and subsequent interpretations of the ATCA, also found that the ATCA provides a private right of action. See Abebe-Jira, 72 F.3d at 848. The Abebe-Jira Court noted that the legislative history indicated that Congress was aware that [t]he TVPA would establish an unambiguous and modern basis for a cause of action that has been successfully maintained under an existing law, section 1350 of the Judiciary Act of 1789 [the ATCA], which permits Federal district courts to hear claims by aliens for torts committed in violation of the law of nations. Abebe-Jira, 72 F.3d at 848 (quoting H.R.Rep. No. 367, 102d Cong., 2d Sess. 3, reprinted in 1992 U.S.C.C.A.N. 84, 86). Based on this statement, the Abebe-Jira Court concluded that Congress recognized that courts viewed the ATCA as conferring both a forum and a private right of action to aliens alleging violations of international law. 72 F.3d at 848. This Court concludes that if Congress had disagreed with the courts’ finding of a private right of action under the ATCA, Congress could have, and likely would have, amended the ATCA to reflect its intent. Further, the “ ‘committed in violation’ language of the [ATCA] suggests that Congress did not intend to require an alien plaintiff to invoke a separate enabling statute as a precondition to relief under the [ATCA].” Abebe-Jira, 72 F.3d at 847; see also Paul, 812 F.Supp. at 212. Accordingly, this Court finds that the ATCA provides both subject matter jurisdiction and a private right of action for violations of the law of nations. See Jama, 22 F.Supp.2d at 362-63; Abebe-Jira, 72 F.3d at 847-48; Kadic, 70 F.3d at 236. c. Does the Law of Nations Apply to Private Actors? Defendants contend that the Complaint does not allege violations of international law because such norms bind only states and its agents, not private corporations such" }, { "docid": "16403094", "title": "", "text": "itself made clear, the ATCA was to remain intact to function as before. The two acts thus are not competing provisions but are meant to be complementary and mutually reinforcing (if somewhat coextensive). Federal courts addressing this specific issue have ruled accordingly, holding that the TVPA does not restrict the scope and coverage of the ATCA. See, e.g., Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir.1995) (“The scope óf Alien Tort Act remains undiminished by enactment of the Torture Victim Act”); Flores v. S. Peru Copper Corp., 343 F.3d 140, 153 (2d Cir.2003) (recognizing that “the TVPA reaches conduct that may also be covered by the ATCA”); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 168-69 (5th Cir.1999) (considering separately claims under the ATCA and TVPA that are “essentially predicated on the same claims of individual human rights abuses”); Abebe-Jira v. Ne- gewo, 72 F.3d 844, 848 (11th Cir.1996) (citing the TVPA as confirmation that the ATCA itself confers a private right of action); Hilao v. Estate of Marcos, 108 F.3d 767, 778-79 (9th Cir.1996) (noting that the TVPA codifies the cause of action recognized to exist in the ATCA); Wiwa v. Royal Dutch Petroleum Co. et al., 2002 WL 319887 at *4 (S.D.N.Y. Feb.28, 2002) (concluding that “plaintiffs’ claims under ATCA are not preempted by the TVPA _the TVPA simply provides an additional basis for assertion of claims for torture and extrajudicial killing”); Doe v. Islamic Salvation Front, 993 F.Supp. 3, 7-9 (D.D.C.1998) (recognizing simultaneous claims under the ATCA and the TVPA). Indeed to rule otherwise would implicitly undercut more than twenty years of jurisprudence, inaugurated by Filartiga, which affirms the ATCA’s applicability to human rights suits. The majority has not identified any contrary precedents on this point, and I am not aware of any. Of course, the Supreme Court addressed the scope of the ATCA quite recently in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). The majority incredibly casts the Sosa decision as confirming the preclusive effect of the TVPA. See Maj. Op. at 885. Yet in fact the Sosa Court, while" }, { "docid": "16221287", "title": "", "text": "under ATCA, and reversed the dismissal of Alvarez’s FTCA claims. Alvarez-Machain v. United States (“Alvarez-Machain IV”), 266 F.3d 1045, 1064 (9th Cir.2001), reh’g en banc granted, 284 F.3d 1039, 1040 (9th Cir.2002). Discussion I. Alien Tort Claims Act-Jurisdiction and Cause of Action The ATCA provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. Although enacted in 1789 as part of the first Judiciary Act, the ATCA received little attention until 1980, when the Second Circuit, in a comprehensive analysis of the statute, held that the ATCA provided subject matter jurisdiction over an action brought by Paraguayan citizens for torture—a violation of the law of nations—committed in Paraguay. See Filartiga v. Pena-Irala (Filartiga I), 630 F.2d 876 (2d Cir.1980). Since the Filartiga I decision, the ATCA has been invoked in a variety of actions alleging human rights violations. See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996) (affirming judgment under ATCA against former Ethiopian official for torture and cruel, inhuman, and degrading treatment); Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995) (concluding that alleged war crimes, genocide, torture, and other atrocities committed by a Bosnian Serb leader were actionable under the ATCA); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984) (dismissing for lack of subject matter jurisdiction claims brought against the Palestine Liberation Organization, the Libyan government, and other entities for terrorist activities alleg edly in violation of the law of nations); Xuncax v. Gramajo, 886 F.Supp. 162 (D.Mass.1995) (deeming torture, summary execution, “disappearance,” and arbitrary detention by Guatemalan military to be actionable violations under the ATCA). Our first opportunity to address the scope of the ATCA came in Trajano v. Marcos (In re Estate of Marcos Human Rights Litig.) (\"Marcos I”), 978 F.2d 493 (9th Cir.1992), a wrongful death action against former Philippine President Ferdinand Marcos and his daughter for the torture and murder of a Philippine citizen. We recognized that “it would be unthinkable to conclude other" }, { "docid": "21855655", "title": "", "text": "with the paramilitary through Kirby, Kielland, or Bebidas. As with the facial challenge to subject matter jurisdiction, therefore, Plaintiffs cannot prove that the Coca-Cola Defendants violated international law by participating in Gil’s murder, the third element of the ATCA claim. Accordingly, and as an alternative to dismissal for lack of subject matter jurisdiction, the court concludes Coca-Cola U.S.A. and Coca-Cola Colombia are entitled to judgment as a matter of law on the ATCA claim. C. Subject Matter Jurisdiction and the Torture Victims Protection Act: Although the TVPA creates a private cause of action for torture and extrajudicial killing perpetrated by individuals acting under the color of law of any foreign nation, it does not confer jurisdiction standing alone. Claims for torture and extrajudicial killing may be entertained only if they fall within the jurisdiction conferred by the ATCA Abebe-Jira v. Negwo, 72 F.3d 844, 848 (11th Cir.1996); Kadic, 70 F.3d at 246. Defendants raise three issues involving subject matter jurisdiction under the TVPA. First, they all contend Plaintiffs have not sufficiently alleged that they acted under color of Colombian law. The color of law element of a TVPA claim is identical to that under the ATCA. For reasons explained under the ATCA analysis, the court does not have subject matter jurisdiction over the ATCA claim against Coca-Cola U.S.A. and Coca-Cola Colombia. Hence, there is no subject matter jurisdiction over the TVPA claim against the Coca-Cola Defendants either. Similarly, based on the ATCA analysis of both the facial and factual challenge above, Plaintiffs have sufficiently alleged that the paramilitary and Defendants Kirby, Kiel-land, and Bebidas acted under color of law. The remaining Defendants — Kirby, Kielland, and Bebidas — next contend the complaint does not adequately allege that Plaintiffs have exhausted local remedies because they did not even attempt to seek relief in Colombia. The TVPA requires the court to decline to hear a claim “if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.” 28 U.S.C. § 1350, note, § 2(b). Plaintiffs allege that seeking legal redress" } ]

[ { "docid": "22132210", "title": "", "text": "Carolina argues that the section destroys its freedom to issue obligations in the form that it chooses. Viewing its borrowing power as essential to the maintenance of its separate and independent existence, South Carolina contends that the condition imposed by § 103 (j)(l) on the exercise of that power violates the Tenth Amendment. In addition, relying on Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429 (1895), South Carolina argues that Congress may not tax the interest earned on the obligations of a State. Because § 103(j)(l) imposes a tax on the interest earned on state obligations issued in bearer form, the State argues that the section is unconstitutional. Accordingly, South Carolina asks that its motion to file the complaint be granted and that this Court award declaratory, injunctive, and other appropriate relief. The Secretary does not address the merits of the State’s constitutional claims. Rather, he argues that we may not grant the motion to file because this action is barred by the Anti-Injunction Act. The Act provides, in pertinent part, that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” Characterizing this action as a suit to “restrain] the assessment or collection of” a tax, the Secretary contends that this suit is barred by the statute. The Secretary argues that Enochs v. Williams Packing & Navigation Co., 370 U. S. 1 (1962), establishes the single judicially created exception to the Act and that this action does not fall within that exception. We need not address whether this case falls within the Williams Packing exception for we hold that the Act was not intended to bar an action where, as here, Congress has not provided the plaintiff with an alternative legal way to challenge the validity of a tax. II When enacted in 1867, the forerunner of the current Anti-Injunction Act provided that “no suit for the purpose of restraining the assessment or collection of tax shall be maintained" } ]

[ { "docid": "18923123", "title": "", "text": "by language of that statute quoted above. Fritz v. United States, Civil Action No. C-l-82-806 (S.D. Ohio, December 16, 1982). Plaintiff argues, however, that this action falls within a judicially created exception to the Anti-Injunction Act. In Enochs v. Williams Packing and Navigation Company, 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), the Supreme Court held that the Anti-Injunction Act would not bar an action to restrain assessment or collection of a tax “if it is clear that under no circumstances could the government ultimately prevail” and “if equity jurisdiction otherwise exists.” 370 U.S. at 7, 82 S.Ct. at 1129. The Court stated that, [w]e believe that the question of whether the government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise, the District Court is without jurisdiction, and the complaint must be dismissed. Id. The Supreme Court has since held that the exception set forth in Williams Packing is the only exception to the Anti-Injunction Act. Bob Jones University v. Simon, 416 U.S. 725, 742, 94 S.Ct. 2038, 2048, 40 L.Ed.2d 496 (1974). In determining whether this action falls within the Williams Packing exception, this Court notes initially that the taxpayer seeking to bring an action within that exception has the ultimate burden of persuading the court that under no circumstances could the government ultimately prevail on the merits of its claim. Commissioner v. Shapiro, 424 U.S. 614, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976). Therefore, to the extent it is necessary to make such a determination, the Court must look to the merits of this case. The essence of plaintiffs’ argument is that the Government’s assessment of the penalty and any subsequent levying of property, in particular the garnishment of taxpayers’ wages, would constitute a taking of property without due process, a violation of plaintiffs’ Fifth Amendment" }, { "docid": "18923122", "title": "", "text": "upon-which relief can be granted. Defendant’s assertion that this Court lacks jurisdiction over the subject matter is based upon the Anti-Injunction Act, 26 U.S.C. § 7421(a), which states Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b)(1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed. 26 U.S.C. § 6682(c) as amended, specifically provides that the deficiency procedures outlined in sections 6212 and 6213 do not apply to the assessment or collection of any penalty imposed by section 6682. 26 U.S.C. § 7426 applies only to civil actions by persons other than taxpayers. Furthermore, section 6671 of the Code provides that any reference in the Code to “tax” shall be deemed to refer to the penalties and liabilities provided by this subchapter. 26 U.S.C. § 6671(a). It is clear, therefore, that this action is not excluded from the provisions of The Anti-Injunction Act by language of that statute quoted above. Fritz v. United States, Civil Action No. C-l-82-806 (S.D. Ohio, December 16, 1982). Plaintiff argues, however, that this action falls within a judicially created exception to the Anti-Injunction Act. In Enochs v. Williams Packing and Navigation Company, 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), the Supreme Court held that the Anti-Injunction Act would not bar an action to restrain assessment or collection of a tax “if it is clear that under no circumstances could the government ultimately prevail” and “if equity jurisdiction otherwise exists.” 370 U.S. at 7, 82 S.Ct. at 1129. The Court stated that, [w]e believe that the question of whether the government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise, the District" }, { "docid": "8661066", "title": "", "text": "416 U.S. 752, 759, 94 S.Ct. 2053, 2057, 40 L.Ed.2d 518 (1974). In short, the Court does not have jurisdiction to hear Plaintiffs claim for a permanent injunction. Plaintiff can claim to fall within an exception to the Anti-Injunction Act only when two conditions are met: first, it must be clear that the Government will not prevail under any circumstance. Second, the Court must have equity jurisdiction. En-ochs v. Williams Packing Navigation Co., Inc., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). “Only if it is apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise, the District Court is without jurisdiction, and the complaint must be dismissed.” Id. As in Enochs, the record before this Court clearly establishes that the Government’s claim of liability is not without foundation. See 370 U.S. at 8, 82 S.Ct. at 1129. Since the Court concludes that § 7421(a) bars any suit for an injunction in this case, it need not determine whether the taxpayer would suffer irreparable injury if collection were effected. See Enochs, 370 U.S. 1, 6-7, 82 S.Ct. 1125, 1128-1129. This Court is not convinced that there are no circumstances under which the Government can prevail in this suit. Plaintiffs claim does not fit within the Enochs exception to the Anti-Injunction Act. The United States’ Motion to Dismiss will be granted to the extent that it seeks dismiss of the action seeking a permanent injunction against the collection of taxes. In conclusion, the Court will grant the requested substitution of parties raised in the Government’s Motion to Dismiss (# 16), thereby substituting the United States in place of the Internal Revenue Service as the proper defendant to this action. The Court will further dismiss Plaintiff’s Complaint as to all claims. Government’s Alternative Motion for Summary Judgment (#16) Even if Plaintiff’s claims were not dismissed, the Court finds that it is appropriate to grant United States’ Motion for Summary Judgment (# 16) of August 17, 1990. Pursuant to Fed.R.Civ.P." }, { "docid": "1306643", "title": "", "text": "Nash, 488 F.2d 1081, 1083-84 (3d Cir.1973); see also Perlowin v. Sassi, 711 F.2d 910, 911 (9th Cir.1983); Cool Fuel, Inc. v. Connett, 685 F.2d 309 (9th Cir.1982); Philadelphia & Reading Corporation v. Beck, 676 F.2d 1159 (7th Cir.1982). A separate, judicially-created exception to Section 7421(a) was formulated by the Supreme Court in Williams Packing: [I]f it is clear that under no circumstances could the government ultimately prevail, the central purpose of the [Anti-Injunction] Act is inapplicable and ... the attempted collection may be enjoined if equity jurisdiction otherwise exists. In such a situation the exaction is merely “in the guise of a tax.” Williams Packing, 370 U.S. at 7, 82 S.Ct. at 1129 (citations omitted). Taxpayers must meet two independent requirements before Williams Packing will support a claim for injunctive relief. First, when the facts and law are examined in the light most favorable to the government, it must appear that the government cannot prevail on the merits. Williams Packing, 370 U.S. at 7, 82 S.Ct. at 1129. Second, because Williams Packing did not alter the long-established prerequisites for equitable relief, there must also be an independent basis for the court to exercise its equitable jurisdiction. Id. See South Carolina v. Regan, 465 U.S. 367, 374, 104 S.Ct. 1107, 1112, 79 L.Ed.2d 372 (1984); Bob Jones University v. Simon, 416 U.S. 725, 737, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974). The Williams Packing exception to the Anti-Injunction Act is distinct from and in addition to those exceptions contained in the text of Section 7421(a) itself. Williams Packing recognized that where there is no basis for the government position, the government exaction is merely in the “guise of a tax.” The exceptions listed in Section 7421(a), e.g., Section 6213(a), address the obverse situation where the government attempts to collect what admittedly is a tax. Thus, a taxpayer proceeding under Section 6213(a) need not satisfy Williams Packing in addition to the requirements imposed by Section 6213(a). Thus, contrary to the government’s position in this litigation, the Williams Packing prerequisite — that under the most liberal view of the law and" }, { "docid": "10918587", "title": "", "text": "lacks such jurisdiction. The scope of the Anti-Injunction Act is broad and its language has been liberally construed by the courts. See, e.g., Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974) (Act prohibits injunction against revocation of tax exempt status); Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962) (Act bars injunction against collection of social security and unemployment taxes); In re Petrusch, 667 F.2d 297 (2d Cir.1981), cert. denied sub nom. Petrusch v. Teamster’s Local 317, 456 U.S. 974, 102 S.Ct. 2238, 72 L.Ed.2d 848 (1982) (Act preempts Norris-LaGuardia Act); Kirtley v. Bickerstaff, 488 F.2d 768 (10th Cir.1973), cert. denied, 419 U.S. 828, 95 S.Ct. 47, 42 L.Ed.2d 52 (1974) (Act prohibits suit for injunctive relief brought by “innocent spouses”); Keese v. U.S., 632 F.Supp. 85 (S.D.Tex.1985) (Act prohibits injunction restraining IRS from auditing returns, disclosing tax preparer’s name in interviews with his clients, withholding his client’s refund checks or using information obtained from his clients). The policy underlying the Act is “the protection of the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, ‘and to require that the legal right to the disputed sums be determined in suit for a refund.’ ” Bob Jones University v. Simon, 416 U.S. at 736, 94 S.Ct. at 2046 (quoting Enochs v. Williams Packing and Navigation, 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)). So compelling is the Government’s interest in the speedy assessment and collection of taxes that, in the absence of a statutory exception, the literal terms of the Act may be circumvented, and an injunction may issue, only “if it is clear that under no circumstances could the Government ultimately prevail,” 416 U.S. at 737, 94 S.Ct. at 2046 (quoting En-ochs, 370 U.S. at 7, 82 S.Ct. at 1129), or “where ... Congress has not provided the plaintiff with an alternate legal way to challenge the validity of a tax.” South Carolina v. Regan, 465 U.S. 367, 372-73, 104 S.Ct." }, { "docid": "10918588", "title": "", "text": "the Act is “the protection of the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, ‘and to require that the legal right to the disputed sums be determined in suit for a refund.’ ” Bob Jones University v. Simon, 416 U.S. at 736, 94 S.Ct. at 2046 (quoting Enochs v. Williams Packing and Navigation, 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)). So compelling is the Government’s interest in the speedy assessment and collection of taxes that, in the absence of a statutory exception, the literal terms of the Act may be circumvented, and an injunction may issue, only “if it is clear that under no circumstances could the Government ultimately prevail,” 416 U.S. at 737, 94 S.Ct. at 2046 (quoting En-ochs, 370 U.S. at 7, 82 S.Ct. at 1129), or “where ... Congress has not provided the plaintiff with an alternate legal way to challenge the validity of a tax.” South Carolina v. Regan, 465 U.S. 367, 372-73, 104 S.Ct. 1107, 1111, 79 L.Ed.2d 372 (1984). Although Congress has at various times enacted specific statutory exceptions to the Act, none of them applies to the authority of the bankruptcy court. See 26 U.S.C. §§ 7421(a), 6212(a), 6212(c), 6213(a), 6672(b), 6694(c), 7426(a), 7426(b)(1), 7429(b). Nor does the Bankruptcy Code manifest any Congressional intent to exempt the bankruptcy court from the restrictions of the Anti-Injunction Act or to authorize an injunction restraining the assessment and collection of taxes against parties not in bankruptcy. Therefore, the Court concludes the Bankruptcy Code does not preempt the Anti-Injunction Act so as to permit the bankruptcy court to enjoin revocation of a debtor organization’s tax exempt status. In conclusion, the Court holds that the Anti-Injunction Act prohibits the bankruptcy court from enjoining revocation of a debtor organization’s tax exempt status. The order of the bankruptcy court enjoining revocation of PTL’s tax exempt status was issued outside its jurisdiction and is therefore reversed. IT IS SO ORDERED. . See infra Part II. .The Court stated: The purpose of the Bankruptcy Act is" }, { "docid": "1310539", "title": "", "text": "preenforcement judicial interference,” Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974) and to “require that the legal rights to the disputed sums be determined in a suit for a refund.” Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). The instant adversary proceeding plainly falls within the literal scope of the Anti-Injunction Act. Even though the plaintiffs are not herein disputing the amount of the tax or seeking to forever prevent its collection, they do seek to enjoin the IRS to collect such tax in the manner prescribed by the Chapter 13 plan. The suit is therefore one “for the purpose of restraining ... collection,” since such language prohib its “all injunctive suits against the tax collector.” South Carolina v. Regan, — U.S. -, -, 104 S.Ct. 1107, 1119, 79 L.Ed.2d 372 (1984) (O’Connor, J., concurring) (emphasis added). The Supreme Court has approved only two judicially-created exceptions to the Act’s proscription. The first applies in cases where the plaintiff can demonstrate irreparable harm and a certainty of success on the merits, Williams Packing, supra; the second applies in cases where the plaintiff has no alternative legal means of challenging the tax. South Carolina v. Regan, supra. Neither exception applies to the instant case, since the validity of the assessment is not challenged. There are, however, a number of court decisions which hold that the Anti-Injunction Act does not bar the bankruptcy court from restraining the IRS from assessing or collecting taxes where such order is necessary “to protect its jurisdiction, administer the bankrupt’s estate in an orderly and efficient manner and fulfill the policy of the Bankruptcy Act.” Bostwick v. United States, 521 F.2d 741, 744 (8th Cir.1975). E.g., In re Jon Co., Inc., supra, 30 B.R. 831 (D.C.D.Colo.1983); In re H & R Ice Co., Inc., 24 B.R. 28 (Bkrtcy.W.D.Mo.1982). Other courts have taken the opposite view, and have held that the proscription of the Act applies to bankruptcy court proceedings as it does to all other courts. E.g., Matter" }, { "docid": "1310538", "title": "", "text": "11091 (Sept. 18, 1978), reprinted in 11 U.S.C.S. § 106 at 64. Although the instant action does not involve a determination of the amount of the debtor’s tax, but rather, the manner in which the debtor’s joint tax liability may be collected, it nevertheless falls within the broad ambit of the waiver provided by subsection (c). See generally 2 Collier on Bankruptcy 1 106.04 (15th ed. rev. 1983). C. Tax Injunction Act The IRS’ next contention is that the bankruptcy court order enjoining it from collecting taxes is expressly barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a), which provides in pertinent part: § 7421. Prohibition of suits to restrain assess collection. (a) Tax... [N]o suit for the purpose \"of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed. The purpose of the Act is to serve “the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference,” Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974) and to “require that the legal rights to the disputed sums be determined in a suit for a refund.” Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). The instant adversary proceeding plainly falls within the literal scope of the Anti-Injunction Act. Even though the plaintiffs are not herein disputing the amount of the tax or seeking to forever prevent its collection, they do seek to enjoin the IRS to collect such tax in the manner prescribed by the Chapter 13 plan. The suit is therefore one “for the purpose of restraining ... collection,” since such language prohib its “all injunctive suits against the tax collector.” South Carolina v. Regan, — U.S. -, -, 104 S.Ct. 1107, 1119, 79 L.Ed.2d 372 (1984) (O’Connor, J., concurring) (emphasis added). The Supreme Court has approved only two judicially-created exceptions to the Act’s proscription. The first applies in cases" }, { "docid": "8237259", "title": "", "text": "dispute, however, that the federal tax exception to the Declaratory Judgment Act is at least as broad as the Anti-Injunction Act.”). Although the Supreme Court has commented that the language of the AIA “could scarcely be more explicit,” Bob Jones, 416 U.S. at 736, 94 S.Ct. 2038 (quoting § 7421(a)), two judicially created exceptions have been recognized, see Nat’l Taxpayers, 68 F.3d at 1436. First, under South Carolina v. Regan, 465 U.S. 367, 104 S.Ct. 1107, 79 L.Ed.2d 372 (1984), a suit otherwise prohibited by the AIA may be brought if the plaintiff has no recourse to alternative legal remedies. See Nat’l Taxpayers, 68 F.3d at 1436. Second, under Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), a suit may be brought notwithstanding the AIA if it is clear that under no circumstances could the government prevail and equity jurisdiction otherwise exists. See Nat’l Taxpayers, 68 F.3d at 1436. A. The AIA is applicable to Plaintiff’s claims. Plaintiff first argues that the AIA is not applicable to the instant suit because Plaintiff does not bring its claims “for the purpose” of restraining the assessment or collection of taxes. Plaintiff states that “the heart of Plaintiffs suit is not to restrain the Defendants from assessing and collecting taxes, but to restrain the Defendants from unconstitutionally forcing members of the debt buying industry to (1) violate the FDCPA, and/or (2) forego their legal and economic rights.” Pl.’s Mem. at 16 — 17. Plaintiff construes the “for the purpose” language of the AIA as creating an express intent requirement. However, as read by the D.C. Circuit, the AIA should not be construed so narrowly. In Foodservice and Lodging Institute v. Regan, the D.C. Circuit considered whether the contested regulations “plainly concem[ed] the assessment or collection of federal taxes” in determining whether the Anti-Injunction Act and the Declaratory Judgment Act should bar appellant’s challenges. Foodservice & Lodging Inst. v. Regan, 809 F.2d 842, 844 (D.C.Cir.1987) (emphasis added). See also Bob Jones, 416 U.S. at 740, 94 S.Ct. 2088 (“[W]e cannot say that [the IRS’s] position" }, { "docid": "20467357", "title": "", "text": "need only be “mailed,” 26 U.S.C. § 6213(a), and that such notice “shall be sufficient” if it is “mailed to the taxpayer at his last known address.” Id. § 6212(b)(1). Brown therefore controls. The notice sent by certified mail to Pagonis’s last known address was sufficient under § 6212, and the exception to the Anti-Injunction Act in § 6213(a) does not apply to Pagonis’s suit. Pagonis contends alternatively that, the judicially created Williams Packing exception to the Anti-Injunction Act provides a basis for the district court to exercise jurisdiction. In Williams Packing, the Court explained that § 7421(a) does not bar suits to enjoin the assessment or collection of a tax when “it is clear that under no circumstances could the Government ultimately prevail” on its claim of liability and “equity jurisdiction otherwise exists.” 370 U.S. at 7, 82 S.Ct. 1125. In this limited situation, when the government’s claim of liability is without foundation, “the exaction is merely in the guise of a tax,” and the government is not entitled to the Act’s normal protection from suit. Id. (internal quotation omitted). In determining whether there are circumstances under which the government could prevail, we consider “the most liberal view of the law and the facts” at the time of suit, id., and “the constitutional nature of a taxpayer’s claim, as distinct from its probability of success, is of no consequence.” Alexander v. “Americans United” Inc., 416 U.S. 752, 759, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974). This case does not fall within the narrow Williams Packing exception, because there is no clear showing that the government will be unable to prevail on its claim. Pagonis has raised no challenge to the merits of her tax liability. Rather, she argues only that because the notice mailed to her address allegedly failed to meet constitutional due process standards, the government cannot ultimately prevail in a collection or refund action. Even if the Williams Packing exception applies outside the context of challenges to the merits of the tax liability, under the most liberal view of the law, it is far from clear that" }, { "docid": "325642", "title": "", "text": "90 days had passed, the IRS issued a second notice of deficiency for 1982, and increased the deficiency to $31,384. The government properly mailed this notice, but the Joneses deny receiving it. Pursuant to the notice of deficiency dated May 19,1986, the Commissioner of Internal Revenue assessed $31,-384.30 in taxes, $16,758.43 in interest and $8,822.75 in penalties against the Joneses for the year 1982 on November 17, 1986. The district court dismissed the Joneses’ suit for lack of jurisdiction on January 30, 1989, pursuant to the Anti-Injunction Act, 26 U.S.C. § 7421(a), which prohibits suits to restrain the assessment or collection of taxes except in certain circumstances. The Joneses appeal from this order. II The Joneses contend that the deficiency notice procedures set forth in the Internal Revenue Code of 1986, 26 U.S.C. §§ 6212 and 6213(a), were not correctly followed before the taxes were assessed, and that, consequently, an injunction restraining collection of those taxes should issue. Section 7421(a) of the Internal Revenue Code, commonly known as the Anti-Injunction Act, provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom the tax was assessed.” 26 U.S.C. § 7421(a). The Act insures that, once a tax has been assessed, the taxpayer ordinarily has no power to prevent the IRS from collecting it; his only recourse is to pay the tax in full, and then sue for a refund. See Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962); Bob Jones University v. Simon, 416 U.S. 725, 736-37, 94 S.Ct. 2038, 2045-46, 40 L.Ed.2d 496 (1974); South Carolina v. Regan, 465 U.S. 367, 376, 104 S.Ct. 1107, 1113, 79 L.Ed.2d 372 (1984). The Anti-Injunction Act enumerates exceptions to its proscription. One of these exceptions is when the IRS assesses or collects a tax without sending the taxpayer a proper notice of deficiency so that he might have his case heard in the Tax Court. 26 U.S.C." }, { "docid": "8661065", "title": "", "text": "Motion to Dismiss (# 13) with regard to Plaintiffs claim for return of allegedly illegally seized property. The Government also claims that the Anti-Injunction Act, 26 U.S.C. § 7421, bars the Court from hearing suits for permanent injunctions such as that Plaintiff seeks to prohibit the United States from any further collection activity. The Anti-Injunction Act provides that “no suit for the purposes of restraining the assessment or collection of any tax shall be maintained in any court by any person.” 26 U.S.C. § 7421(a). The Supreme Court has interpreted the statute broadly. See, e.g., Bob Jones University v. Simon, 416 U.S. 725, 736-37, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974) (Anti-Injunction Act barred enjoinment of revocation of ruling letter declaring that University qualified for tax-exempt status where University refused to admit Blacks as students even though case did not truly involve taxes but an attempt to regulate admission policies of private universities). Plaintiffs vague assertion of a constitutional claim is insufficient to overcome the Act. Complaint at 117; Alexander v. American United Inc., 416 U.S. 752, 759, 94 S.Ct. 2053, 2057, 40 L.Ed.2d 518 (1974). In short, the Court does not have jurisdiction to hear Plaintiffs claim for a permanent injunction. Plaintiff can claim to fall within an exception to the Anti-Injunction Act only when two conditions are met: first, it must be clear that the Government will not prevail under any circumstance. Second, the Court must have equity jurisdiction. En-ochs v. Williams Packing Navigation Co., Inc., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). “Only if it is apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise, the District Court is without jurisdiction, and the complaint must be dismissed.” Id. As in Enochs, the record before this Court clearly establishes that the Government’s claim of liability is not without foundation. See 370 U.S. at 8, 82 S.Ct. at 1129. Since the Court concludes that § 7421(a) bars any suit for an injunction in" }, { "docid": "1159096", "title": "", "text": "its claim against the Debtor, waived its sovereign immunity with respect to the responsible person liability of the non-debtor Sonmez. Furthermore, there is no indication that the United States consented to the jurisdiction of the bankruptcy court to litigate the propriety of the United States’ collection of the penalty from Son-mez. Even if the bankruptcy court had jurisdiction over the Debtor’s request for injunctive relief as to Sonmez’s liability under § 6672, the court would be prevented from entering the injunction against the United States by the Anti-Injunction Act, I.R.C. § 7421. The statute provides that no suit for the purpose of restraining the collection of any tax shall be maintained in any court by any person, except as provided in certain enumerated statutes which are not relevant to the instant case. Bankruptcy courts are not excepted from the prohibition of the Anti-Injunction Act. The Supreme Court recognized an exception to the Anti-Injunction Act in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). A court can enter an appropriate injunction where the plaintiff can show that under no circumstances could the government ultimately prevail and equity jurisdiction otherwise exists. Id. at 7, 82 S.Ct. at 1129. With respect to the first prong, the Court stated that the injunction could be maintained only if it is apparent on the basis of the information available to the government at the time of the suit, under the most liberal view of the law and facts, that the United States could not establish its claim. Id. The Enochs exception does not apply to this case because it is not clear under the most liberal view of the facts that the United States cannot prevail. Actually, it is clear that the United States will prevail. The Debtor does not dispute Sonmez’s liability under § 6672, it only disputes the amount. That the amount of Sonmez’s lia bility may not be as great as the United States now claims does not constitute a showing that the United States cannot prevail on its assessment and collection. Finally, the" }, { "docid": "10423211", "title": "", "text": "of the Act is to protect “the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, ‘and to require that the legal right to the disputed sums be determined in a suit for refund.’” Bob Jones Univ. v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)). Under the Anti-Injunction Act there is a judicially created exception for taxpayers, see Enochs, 370 U.S. at 7, 82 S.Ct. at 1129, which Randell argues applies to him. To qualify for this exception a taxpayer must show (1) that “it is clear that under no circumstances could the Government ultimately prevail” on the tax liability and (2) that “equity jurisdiction otherwise exists” because the taxpayer would suffer irreparable injury if collection were effected. Id. A court must “take the view of the facts that is most liberal to the Commissioner, not to the taxpayer seeking injunctive relief.” Laino v. United States, 633 F.2d 626, 632 (2d Cir.1980). Randell has failed to make the requisite showing. By its own terms, the Anti-Injunction Act also includes an exception for injunction proceedings brought under I.R.C. § 6213(a). That section provides that a taxpayer has certain time periods to challenge a notice of deficiency and that “no assessment of a deficiency in respect of any tax ... and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration” of the appropriate time period. § 6213(a). It continues, “[notwithstanding the provisions of [the Anti-Injunction Act], the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court.” Id. Randell avers, therefore, that the district court had jurisdiction to enjoin the IRS’ assessment and collection efforts since he had not received the statutorily required notice of deficiency. The government’s" }, { "docid": "20467354", "title": "", "text": "challenge the validity of the assessment. If the taxpayer pays part of the assessment and seeks to challenge it through a refund action under § 1346(a)(1), then the suit is barred by the Supreme Court’s ruling in Flora that full payment of an assessment is a prerequisite to a refund action. 362 U.S. at 177, 80 S.Ct. 630. Alternatively, if the taxpayer challenges the assessment without paying any portion of it, the suit is typically barred by the Internal Revenue Code’s Anti-Injunction Act, 26 U.S.C. § 7421(a). Section 7421(a) prohibits any “suit for the purpose of restraining the assessment or collection of any tax” brought by “any person” in “any court,” but includes a number of exceptions, two of which are relevant here. First, pursuant to § 6213(a), the jurisdictional bar does not apply if the IRS attempts to assess or collect the tax before mailing the notice of deficiency in compliance with § 6212. See id. §§ 6213(a), 7421(a). Second, a judicially created exception to the bar applies if the government has no chance of ultimately prevailing on its claim “under the most liberal view of the law and the facts” at the time of suit and “equity jurisdiction otherwise exists.” Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). B. The district court relied on both the Flora full-payment rule and the Anti-Injunction Act in holding that it lacked jurisdiction over Pagonis’s suit. For the reasons that follow, we agree with the district court that the Anti-Injunction Act precludes Pagonis’s suit. Pagonis indisputably brought a “suit for the purpose of restraining the assessment or collection of any tax,” 26 U.S.C. § 7421(a), so the Anti-Injunction Act clearly applies unless there is an exception to the general rule. Pagonis contends that the notice of deficiency mailed by the IRS did not comply with the statutory requirements of § 6212, because the IRS should have taken additional reasonable steps to contact her after the notice sent by certified mail was returned unclaimed. She argues that because the notice was insufficient under" }, { "docid": "14502011", "title": "", "text": "(‘the Anti-Injunction Act’).” Sokolow timely appealed on June 27, 1997. ANALYSIS Sokolow seeks an injunction to prevent the IRS from continuing its efforts to collect the unpaid balance on his 1988 tax account. The Anti Injunction Act, 26 U.S.C. § 7421, limits actions to enjoin the assess ment and collection of taxes. The Act provides, in part, that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person____” I.R.C. § 7421(a). There are, however, several statutory exceptions to the Act, as well as one judicial exception. Elias v. Connett, 908 F.2d 521, 523 (9th Cir.1990). An action that does not fall within one of the exceptions must be dismissed for lack of subject matter jurisdiction. Id. Thus, ordinarily, once a tax has been assessed, the taxpayer’s only recourse is to pay the tax in full and then sue for a refund in district court. United States v. Condo, 782 F.2d 1502, 1506 (9th Cir.1986). Sokolow concedes that his is a suit to enjoin the collection of taxes and that none of the statutory exceptions is applicable. He seeks an injunction pursuant to the judicial exception to the Act: [A]n injunction may be obtained against the collection of any tax if (1) it is “clear that under no circumstances could the government ultimately prevail” and (2) “equity jurisdiction” otherwise exists, i.e., the taxpayer shows that he would otherwise suffer irreparable injury. Commissioner v. Shapiro, 424 U.S. 614, 627, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962)). The burden is on the taxpayer to establish both prongs of the test. See Elias, 908 F.2d at 525-26. Unless both prongs of the test are met, a suit for injunctive relief must be dismissed. Alexander v. “Americans United” Inc., 416 U.S. 752, 758, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974). To meet the second prong of the Williams Packing test, the taxpayer must demonstrate entitlement to equitable relief. “[T]he taxpayer must show that" }, { "docid": "5576632", "title": "", "text": "however, Plaintiff cannot pursue a claim for declaratory or injunctive relief under the APA based upon alleged wrongful tax assessment or collection actions. First, to the extent Plaintiff seeks injunctive relief, his claim is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a), which is part of the Tax Code and which “withdraw[s] jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes.” Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 5, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962); see also Ross v. United States, 460 F.Supp.2d 139, 149 (D.D.C.2006) (finding plaintiffs claim for injunctive relief under the APA barred by the Anti-Injunction Act where claim based on assessment or collection of taxes). Although the Supreme Court has recognized a limited exception to this rule, Plaintiff has not shown that the exception applies in this case. In Enochs, the Supreme Court held that the a suit for injunction may be maintained “[o]nly if it is [ ] apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim.... Otherwise, the District Court is without jurisdiction, and the complaint must be dismissed.” 370 U.S. at 7, 82 S.Ct. 1125. As is self-evident from the Court’s rulings herein granting Defendants’ motion, it is clear that the limited exception recognized in Enochs is inapplicable to the case at hand. Second, Plaintiffs claim for declaratory relief is barred by the Declaratory Judgment Act, 28 U.S.C. § 2201, which authorizes a court of the United States to “declare the rights and other legal relations of any interested party,” but expressly excludes cases “with respect to Federal taxes,” subject to one exception not applicable here. See Bob Jones Univ. v. Simon, 416 U.S. 725, 732-33 n. 7, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974) (“The congressional antipathy for premature interference with the assessment or collection of any federal tax also extends to declaratory judgments____[T]he federal tax exception to the Declaratory Judgment Act is at least as broad as the Anti-Injunction Act.”); see also McGuirl v. United States," }, { "docid": "12594769", "title": "", "text": "Judgment Act to do what they were prohibited from doing under the Anti-Injunction Act,” Eastern Kentucky Welfare Rights Org. v. Simon, 506 F.2d 1278, 1285 n. 11 (D.C.Cir.1974), vacated on other grounds, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); see also Alexander v. “Americans United” Inc., 416 U.S. 752, 759 n. 10, 94 S.Ct. 2053, 2057 n. 10, 40 L.Ed.2d 518 (1974) (observing that the District of Columbia Circuit had held that the two provisions are coterminous, declining to pass judgment on that holding, but conceding that “the federal tax exception to the Declaratory Judgment Act is at least as broad as the prohibition of the Anti-Injunction Act”). The purposes of the two statutory provisions are to allow the Federal Government to assess and collect allegedly due taxes without judicial interference and to compel taxpayers to raise their objections to collected taxes in suits for refunds. Enochs v. Williams Packing Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962) (concerning the Anti-Injunction Act); Flora v. United States, 362 U.S. 145, 164 & n. 29, 80 S.Ct. 630, 640 & n. 29, 4 L.Ed.2d 623 (1960) (concerning the Declaratory Judgment Act). In light of the two provisions’ coextensive nature, a finding that one of the two statutes does not bar the debtors in the instant cases from seeking and obtaining free and clear orders will necessitate a finding that the other statute does not pose an obstacle either. In South Carolina v. Regan, 465 U.S. 367, 104 S.Ct. 1107, 79 L.Ed.2d 372 (1984), the Supreme Court was asked to determine whether the Anti-Injunction Act barred the State of South Carolina from seeking injunc-tive and other relief in a suit challenging the constitutionality of a provision of the Internal Revenue Code that imposed a tax on interest earned from bearer bonds. Id. at 370-71, 104 S.Ct. at 1109-10. The Court held that the Anti-Injunction Act “was not intended to bar an action where ... Congress has not provided the plaintiff with an alternative legal way to challenge the validity of a tax.” Id. at 373," }, { "docid": "14320318", "title": "", "text": "“substantially the same reason that plaintiffs’ argument in Patrick was unavailing: the question of admissibility of evidence is not grounds for an exception to the anti-injunction provisions of 26 U.S.C. § 7421(a)”. The Estate appeals from this dismissal. I. By statute enacted in 1867, and effective continuously ever since, Congress has directed that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” In its recent opinion in Bob Jones University v. Simon, 416 U.S. 725, 736-745, 94 S.Ct. 2038, 2043, 40 L.Ed.2d 496, the Supreme Court reviewed the history of interpretation of the Anti-Injunction Statute and concluded that the stringent, almost literal, construction adopted in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292, is viable today. Specifically, the Court held that irreparable injury to the taxpayer is not a sufficient basis for avoiding the statutory bar; instead of focusing on the degree of harm to the taxpayer, any exception to the statute must rest on a complete absence of merit in the government’s position. The proposed tax assessment must be “plainly without a legal basis”; the case must be one in which the government has “no chance of success on the merits. The Court summarized and reaffirmed its unanimous holding in Williams Packing: Only upon proof of the presence of two factors could the literal terms of § 7421(a) be avoided: first, irreparable injury, the essential prerequisite for injunctive relief in any case; and second, certainty of success on the merits. [370 U.S.] at 6-7 [82 S.Ct. 1125 at 1128-1129]. An injunction could issue only “if it is clear that under no circumstances could the Government ultimately prevail . . . .” Id., at 7 [82 S.Ct. 1125 at 1129]. And this determination would be made on the basis of the information available to the Government at the time of the suit. “Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may" }, { "docid": "20987899", "title": "", "text": "any court for the purpose of restraining the assessment or collection * * * of — (1) the amount of the liability, at law or in equity of a transferee of property of a taxpayer in respect of any internal revenue tax * * bars these ten actions. The Court agrees, as it must in the light of the mandate of this section and of the Supreme Court’s decisions in Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292, interpreting Section 7421(a), and Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422, interpreting the predecessor of Section 7421. The Court in the Williams Packing Co. •decision stated that the object of Section 7421 is to withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes. The -Court stated (370 U.S. p. 7, 82 S.Ct. p. 1129) that only “if it is clear that under no circumstances could the Government ultimately prevail, the central purpose of the Act is inapplicable and, under the Nut Margarine case, the attempted collection may be enjoined if equity jurisdiction otherwise exists.” In determining whether the Government could ultimately prevail, the Court said (370 U.S. 7, 82 S.Ct. 1129) that “Only if it is then (at the time of suit) apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for injunction be maintained.” While Section 7421(a) was before the Court, Section 7421(b) pertaining to transferees is identical in language and meaning and plaintiffs must meet the same burden under Section 7421(b). Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289; Milliken v. Gill, 211 F.2d 869 (C.A.4th), certiorari denied, 348 U.S. 827, 75 S.Ct. 47, 99 L.Ed. 652. The plaintiffs under the Williams Packing decision thus have a double burden to carry to establish their right to invoke the equitable jurisdiction of this Court. Plaintiffs must first prove “that under no circumstances could the Government ultimately prevail,”" } ]

[ { "docid": "7295950", "title": "", "text": "law of the case. Whether the law of the case doctrine bars subsequent litigation of a claim is an issue of law subject to plenary review by this court. See Dopp v. Pritzker, 38 F.3d 1239, 1245 (1st Cir.1994). Tang’s reliance on the law of the case doctrine is misplaced. As we recently said, that doctrine both prevents a party from relitigating an issue decided by a lower court and unchallenged on appeal, and requires a lower court to comply with a superi- or court’s instructions on remand. See Field v. Mans, 157 F.3d 35, 40-41 (1st Cir.1998). The doctrine does not preclude all reconsideration of an issue already settled. See Bethlehem Steel Export Corp. v. Redondo Constr. Corp., 140 F.3d 319, 321 (1st Cir.1998). “Interlocutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the case.” Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994). At the time of Judge Pettine’s comments, the parties had not briefed whether the evidence was admissible; the Department had made a motion to dismiss the complaint. Even if Judge Pettine’s comments constituted a ruling on admissibility, that ruling was interlocutory and subject to reconsideration. The fact that the issue was reconsidered by Judge Torres, rather than Judge Pettine, is of no moment. See United States v. O’Keefe, 128 F.3d 885, 891 (5th Cir.1997) (“[A] successor judge has the same discretion to reconsider an order as would the first judge.”). The law of the case is simply not implicated in Judge Torres’s ruling on the admissibility of evidence. B. Judgment as a Matter of Law Tang also alleges that the district court erroneously granted judgment as a matter of law in favor of the Department on her First Amendment freedom of speech claim. We review the district court’s decision de novo, taking the facts in the light most favorable to Tang. See Russo v. Baxter Healthcare Corp., 140 F.3d 6, 7-8 (1st Cir.1998). We may affirm the judgment only if there “is no legally sufficient evidentiary basis for a reasonable jury to find" } ]

[ { "docid": "929063", "title": "", "text": "(2d ed.). The law of the case doctrine is unhelpful to Petratos because it “does not limit the power of trial judges to reconsider their [own] prior decisions.” Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997). Therefore, “[ijnterlocu-tory orders ... remain open to trial court reconsideration, and do not constitute the law of the case.” Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994). And the grant of a leave to amend is an interlocutory order. Powers v. Southland Corp., 4 F.3d 223, 229 (3d Cir. 1993). Therefore, Judge Wigenton’s order granting leave to amend was not the law of the case — and Judge Arleo was within her discretion to disagree with it. That this case was transferred between judges does not change the result. Although the doctrine provides that “a successor judge should not lightly overturn decisions of [her] predecessors in a given case,” “it does not limit the power of trial judges from reconsidering issues previously decided by a predecessor judge from the same court.” Fagan, 22 F.3d at 1290; see also Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1252 (10th Cir. 2011) (explaining that the “law of the case doctrine has no bearing on the revisiting of interlocutory orders, even when a case has been reassigned from one judge to another”). V Finally, Petratos argues that the District Court abused its discretion because it denied his request for leave to amend without explanation. But there was nothing to explain. Petratos offered no reason why leave to amend was appropriate or what his amendment would have looked like. His cursory request for leave was contained in the final clause of his brief opposing Genentech’s motion to dismiss. See App. 99 (“Relator respectfully requests that this Court deny Genentech’s motion in its entirety or, alternatively, that Relator be granted leave to amend.”). This threadbare recital was insufficient. “While Federal Rule 15(a) provides that leave to amend shall be freely given when justice so requires, a mere request in [a brief in] opposition to a motion to dismiss — without any indication of the" }, { "docid": "16616783", "title": "", "text": "“authorized” the district court to impose a fifty-year sentence. Ap-pellee Br. at 11. Accordingly, the Government argues, the law of the case doctrine prevents us from reopening this issue. Because Graham is not now raising an Apprendi challenge, and because we never addressed whether § 5G1.2 requires a fifty-year sentence, the law of the case doctrine is inapplicable here. The law of the case doctrine generally discourages courts from reconsidering determinations that the court made in an earlier stage of the proceedings. United States v. Tocco, 306 F.3d 279, 288 (6th Cir.2002), cert. denied, — U.S. -, — S.Ct. -, — L.Ed.2d -, 71 U.S.L.W. 3567, 2003 WL 834961 (U.S. Jun. 16, 2003) (No. 02-1225). “ ‘Law-of-the-case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.’ ” Rosales-Garcia v. Holland, 322 F.3d 386, 398 n. 11 (6th Cir.2003) (en banc) (quoting 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478 (2d ed.2002)). Once a court has decided an issue, its decision should generally be given effect throughout the litigation. See United States v. Todd, 920 F.2d 399, 403 (6th Cir.1990). [3] Here, however, we have not decided the issue that Graham raises. In the initial appeal, we determined that Graham’s fifty-five-year sentence violated the principles of Apprendi v. New Jersey, because even if Graham had been given the statutory maximum penalty for each offense, and all sentences ran consecutively, Graham could only have received a sentence of fifty years. Graham, 275 F.3d at 524. In this appeal, Graham does not argue that his fifty-year sentence constitutes an Apprendi violation. Rather, he argues that his sentence was inappropriate under § 5G1.2 of the Sentencing Guide-fines. We never stated in the initial appeal that a fifty-year sentence was authorized under the guidelines or addressed § 5G1.2 in any way; we ruled only that a fifty-year sentence would be the maximum the district court could impose without violating Apprendi. B. Consecutive Sentences Graham claims that the district court improperly interpreted § 5G1.2 to" }, { "docid": "929062", "title": "", "text": "States ordering and paying for a shipment of guns, only to later discover that the guns were incapable of firing”). IV We turn next to what is essentially a procedural challenge. Petratos claims that Judge Arleo erred by granting Genen-tech’s motion to dismiss in light of Judge Wigenton’s earlier finding that Petratos had “sufficiently alleged causes of action.” App. 56. He alleges that Judge Arleo did not satisfy our rule that absent “ ‘exceptional circumstances,’ ‘judges of co-ordinate jurisdiction sitting in the same court and in the same case should not overrule the decisions of each other.’ ” Petratos Br. 22 (quoting Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 168 (3d Cir. 1982) (citation omitted)). Though Petratos does not cite it by name in his opening brief, he invokes the “law of the case” doctrine: a judicial rule of practice meant to “maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.” 18 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 4478 (2d ed.). The law of the case doctrine is unhelpful to Petratos because it “does not limit the power of trial judges to reconsider their [own] prior decisions.” Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997). Therefore, “[ijnterlocu-tory orders ... remain open to trial court reconsideration, and do not constitute the law of the case.” Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994). And the grant of a leave to amend is an interlocutory order. Powers v. Southland Corp., 4 F.3d 223, 229 (3d Cir. 1993). Therefore, Judge Wigenton’s order granting leave to amend was not the law of the case — and Judge Arleo was within her discretion to disagree with it. That this case was transferred between judges does not change the result. Although the doctrine provides that “a successor judge should not lightly overturn decisions of [her] predecessors in a given case,” “it does not limit the power of trial judges from reconsidering issues previously decided by a predecessor judge from the same court.” Fagan, 22 F.3d at" }, { "docid": "11024699", "title": "", "text": "The jury obviously believed that Lan-gevine’s emotional and other intangible damages were significant. The jury’s valuation of those damages was neither “beyond all reason” nor “so great as to shock the conscience.” See Williams, 494 F.2d at 1085. Judge Robinson found that he had no good basis upon which to second-guess the jury, and we certainly have no basis to reject his judgment on an abuse of discretion standard of review. III. CONCLUSION For the foregoing reasons, we affirm the judgment of the District Court denying defendants’ motion for a new trial and ordering the entry of judgment in favor of Langevine. So ordered. KAREN LeCRAFT HENDERSON, Circuit Judge, concurring in part and dissenting in part: While I concur in the court’s resolution of whether the weight of the evidence mandated a new trial, I cannot join in the conclusion that the district court properly denied a new trial on damages. Under the law of the ease doctrine, “the same issue presented a second time in the same case in the same court should lead to the same result.” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996) (en banc) (footnote omitted). Of course, “[although courts are often eager to avoid reconsideration of questions once decided in the same proceeding, it is clear that all federal courts retain power to reconsider if they wish.” 18 Chaeles AlaN Wright, Arthur R. Miller & Edward H. Cooper, Federal Practioe & Procedure § 4478, at 789 (1981). Indeed, “every order short of a final decree is subject to reopening at the discretion of the district judge.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12, 103 S.Ct. 927, 935, 74 L.Ed.2d 765 (1983) (footnote omitted); see also Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983); United States v. Singleton, 759 F.2d 176, 183 n. 2 (D.C.Cir.1985). The court thus is largely correct about the inapplicability of law of the case to interlocutory orders. Majority Opinion (Maj.Op.) 1022-23. It fails, however, to address an important caveat to that principle. When two trial judges" }, { "docid": "13347987", "title": "", "text": "expressly contradict, amend, or refer to § 374(a). Thus, we cannot say that the district court’s original inspection declaration was plainly erroneous. IV. CONCLUSION The FDA forfeited the inspection issue, and the district court violated the waiver doctrine by reopening the issue. Accordingly, we vacate and remand. VACATED and REMANDED. . See Med. Ctr. Pharmacy v. Mukasey, 536 F.3d 383 (5th Cir.2008). . The law-of-the-case doctrine is called the \"mandate rule” when it embodies the policy that a district court on remand must obey the letter and the spirit of the earlier decision of an appeals court. See United States v. Becerra, 155 F.3d 740, 753 (5th Cir.1998), abrogated on other grounds as stated in United States v. Farias, 481 F.3d 289, 292 (5th Cir. 2007). . Unfortunately, since Castillo, we have often failed to distinguish the waiver doctrine from the law-of-the-case doctrine. E.g., Lee, 358 F.3d at 321 (referring to the waiver doctrine as the mandate rule); Gen. Universal Sys., 500 F.3d at 453-54 (same); see also 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478.6 (2d ed. 2002 & Supp.2010) (explaining that the waiver doctrine is often confused with the law-of-the-case doctrine). Regardless of nomenclature, our cases are consistent; they all hold that if an issue was decided by the district court but was not appealed, the issue is forfeited, and the district court may not reconsider the issue on remand. . Given our occasional failure to treat the waiver doctrine as a separate rule of law, it is not clear whether an appeals court may override the waiver doctrine by expressly leaving an issue open. We note only that in this case, we did not expressly leave the inspection issue open in our first opinion. See 18B Wright, Miller & Cooper, supra note 3, § 4478.3 (\"A remand made without deciding anything, apart from directing further proceedings, determines only that the further proceedings must be had .... ”)." }, { "docid": "23266673", "title": "", "text": "' miss, remain open to trial court reconsideration, and do not constitute the law of the case.” Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994). Thus, the district court was free to reconsider the earlier interlocutory order. We have sometimes said — instead of an outright statement that law of the case is not applicable to interlocutory orders at all — that law of the case permits a lower court to review prior interlocutory orders as long as that review is not an abuse of discretion. Were the law of the case doctrine even to apply, then, we would review only for abuse of discretion. See Geffon v. Micrion Corp., 249 F.3d 29, 38 (1st Cir.2001) (reviewing a district court’s reconsideration of its own prior ruling on summary judgment motion for abuse of discretion); see also In re Cabletron Sys., 311 F.3d 11, 21 n. 2 (1st Cir. 2002) (“The law of the case is a discretionary doctrine, especially as applied to interlocutory orders such as this one. As Justice Holmes expressed it, ‘[T]he phrase, law of the case, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.’ ” (citation omitted) (alteration in original) (quoting Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912))). As one commentator has said, the law of the case doctrine involves an “effusion of applications,” some of which are more discretionary than others. 18B Wright, Miller, &, Cooper, Federal Practice and Procedure § 4478, at 637 (2d ed.2002). Regardless of phrasing, the re- suit here is clear. The district court was not barred from reconsidering the prior decision; at most we review the decision to reconsider only for a particularly egregious abuse of discretion. There was no abuse of discretion here. The district court could have reconsidered this matter even if the prior decision had been its own, rather than the state court’s. See Perez-Ruiz, 25" }, { "docid": "16616782", "title": "", "text": "The district court referred to § 5G1.2 of the Guidelines and the language from this court’s decision that is cited above. Graham appeals, arguing that he should have been given a thirty-five year sentence. He argues that after imposing the mandatory sentences on Counts 13 and 14, which added to twenty-five years, § 5G1.2 of the Guidelines required the district court to impose all remaining sentences to run concurrently with each other. On Graham’s theory, those sentences would have been subsumed under the ten-year sentence on Count 9, which when added to the mandatory sentences on Counts 13 and 14 would result in a total sentence of thirty-five years. We review de novo pure questions of law regarding sentencing, United States v. Canestraro, 282 F.3d 427, 431 (6th Cir.2002), and the determination of what § 5G1.2 requires is a pure question of law. II. ANALYSIS A. Law of the Case The Government argues that Graham “cannot now argue that [his] sentence raises Apprendi error,” because this court previously addressed the Apprendi issue, found error, and “authorized” the district court to impose a fifty-year sentence. Ap-pellee Br. at 11. Accordingly, the Government argues, the law of the case doctrine prevents us from reopening this issue. Because Graham is not now raising an Apprendi challenge, and because we never addressed whether § 5G1.2 requires a fifty-year sentence, the law of the case doctrine is inapplicable here. The law of the case doctrine generally discourages courts from reconsidering determinations that the court made in an earlier stage of the proceedings. United States v. Tocco, 306 F.3d 279, 288 (6th Cir.2002), cert. denied, — U.S. -, — S.Ct. -, — L.Ed.2d -, 71 U.S.L.W. 3567, 2003 WL 834961 (U.S. Jun. 16, 2003) (No. 02-1225). “ ‘Law-of-the-case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.’ ” Rosales-Garcia v. Holland, 322 F.3d 386, 398 n. 11 (6th Cir.2003) (en banc) (quoting 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478 (2d ed.2002)). Once a court" }, { "docid": "23099471", "title": "", "text": "Thomas S. Currier, Moore’s Federal Practice ¶ 0.404[1], at 117 (1991) (“Under the doctrine of law of the case, a decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation.”). This “doctrine is admittedly discretionary and does not limit a court’s power to reconsider its own decisions prior to final judgment.” Virgin Atl. Airways v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.), cert. denied, — U.S. —, 113 S.Ct. 67, 121 L.Ed.2d 34 (1992); see also Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983) (“Law of the case directs a court’s discretion, it does not limit the tribunal’s power.”). As we have noted, “[t]he major grounds justifying reconsideration are ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'\" Virgin Atl. Airways, 956 F.2d at 1255 (quoting 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4478, at 790 (1981)) [hereinafter Federal Practice & Procedure ]. Deciding to reconsider Judge Elfvin’s finding concerning plaintiffs’ § 803(e) claim, Judge Arcara emphasized that the finding was made upon a motion for a preliminary injunction; and, he concluded that “the issue of whether § 803(c) creates a federal cause of action for damages was not directly before him and his holding in that regard was merely dictum.” 786 F.Supp. at 250. Without deciding whether the finding was holding or dictum, we approve the result, recognizing that “[t]he decision of both the trial and appellate court on whether to grant or deny a temporary injunction does not preclude the parties in any way from litigating the merits of the case.” 11 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2962, at 630-31 (1973). Thus, the preliminary and summary nature of Judge Elfvin’s ruling counsels restraint in a strict application of law of the case. In revisiting Judge Elfvin’s finding concerning jurisdiction over plaintiffs’ request" }, { "docid": "23384746", "title": "", "text": "based on incomplete information, don’t bind district judges for the remainder of the case. Given the nature of such motions, it could not be otherwise. At the summary judgment stage, for example, trial courts ask only whether there could be a material issue of fact. They must draw all inferences in the non-movant’s favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and rest their rulings on the evidence that they think could be introduced at trial. But when considering whether to grant judgment as a matter of law, they look only at the evidence actually introduced at trial. It makes no sense to say that a ruling that the plaintiff could hypothetically prove some set of facts that would support his claim prevents a district court from later finding that the plaintiff had not, in fact, proven those facts. Nor to say that if a district court realizes an earlier ruling was mistaken, it can’t correct it, but must instead wait to be reversed on appeal. All that would do is waste both the courts’ and litigants’ time and resources. Thus, Wright and Miller have observed that, although “[i]t is proper [for a district judge] to refuse to reconsider a summary judgment ruling!,] • • • Menial of summary judgment often is reconsidered.” 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4478.1 (2002). “Denial can easily be followed,” as it was here, “by judgment as a matter of law or dismissal after trial.” Id. Peralta’s case illustrates the point. The evidence introduced at trial went beyond that presented in the motion for summary judgment. See Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir.2002). Dillard and Fitter moved for summary judgment on the grounds that (1) Peralta hadn’t presented expert evidence and (2) Dillard and Fitter weren’t personally involved in Peralta’s care. The district court found that the lack of an expert alone wasn’t enough to entitle Fitter and Dillard to summary judgment, and that there were material questions" }, { "docid": "22171976", "title": "", "text": "and it remained so until Chameleon was dismissed and the summary judgment order reinstated. CBI concludes that in effect the court did reconsider and amend its ruling; it just refused to do so in light of CBI’s additional evidence. This argument is undone by the simple fact that, as CBI frankly admits, CBI did not actually file its motion for reconsideration until after the court reissued its summary judgment order. True, the district court asked CBI to withhold its motion until the matter of jurisdiction was resolved. But that does not change the fact that CBI’s motion for reconsideration was an effort to reopen a jurisdictionally valid order granting summary judgment so' as to argue factual and legal points CBI previously could have raised. CBI’s motion for reconsideration gains no validity merely because it was conceived prior to the resolution of a temporary jurisdictional glitch. The district court is entitled to “save” diversity jurisdiction by dismissing dispensable, non-diverse parties during the pendency of the proceedings. See Stockman v. LaCroix, 790 F.2d 584, 587 (7th Cir.1986); cf. 28 U.S.C. § 1653. The rationales for precluding belated attempts ' to reargue motions for summary judgment through motions for reconsideration remain in full force. Law of the case concerns, which are not necessarily dependent upon jurisdiction, also undermine CBI’s position. See 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 4478 (1981) (doctrine of law of the case allows court to rely on previous ruling with same parties on same issues, though doctrine not based on court’s power to reconsider such issues); Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir.1995) (“The doctrine of law of the case establishes a presumption that a ruling made at one stage of a lawsuit will be adhered to throughout the suit.”). For these reasons we conclude the district court did not abuse its discretion in denying CBI’s motion for reconsideration. B. The broad issue here and at summary judgment is whether Credit timely exercised its option. Under New York law, which below both parties" }, { "docid": "8500411", "title": "", "text": "to refuse to reconsider a summary judgment ruling. But denial of summary judgment often is reconsidered and followed by an order granting summary judgment, or by inconsistent action at trial---- ... Denial of class-action certification may be followed by certification. 18B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Vikram David Amar, Richard D. Freer, Helen Hershkoff, Joan E. Steinman & Catherine T. Struve, Federal Practice & Procedure § 4478.1 (2d ed.). The above passage describes the general principles for applying law-of-the-case doctrine to interlocutory orders, but it would seem that the specific context involved here — a motion to reconsider a denial of class certification — would arise commonly enough for courts to have developed some common practice of handling these motions. As it happens, there is a well-worn path to moving to reconsider a class certification denial, and it leads directly uphill. A prominent class-action treatise — one generally regarded as being plaintiff-friendly — describes the consensus standard that has developed at the district-court level for analyzing such motions: Rule 23 enables a district court to alter or amend its class certification decision any time before final judgment. A court may change its mind in either direction; it can: • certify a class that it initially rejected, or • decertify or modify a class that it initially approved. While both types of motions are plausible, decertification and modification are far more common than reconsideration. The difference is easily explained: courts experience themselves as having somewhat unfettered discretion to decertify or modify as part of their oversight of the class suit, but they tend to adjudicate motions for reconsideration through the standard approach to such motions — namely, that they are an exception to the law of the case doctrine — and that approach makes reconsideration highly unlikely. Yet behind this easy explanation lies a more nuaneed explanation concerning the history of Rule 23, a history that suggests that courts are more open to modified certifications than to revisiting denials. Under the pre-2003 version of Rule 23, courts were required to decide the class certification issue “as soon" }, { "docid": "23266672", "title": "", "text": "most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Law of the case directs a court’s discretion, it does not limit the tribunal’s power.” Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (citation and footnote omitted). “Under law of the case doctrine, as now most commonly understood, it is not improper for a court to depart from a prior holding if convinced that it is clearly erroneous and would work a manifest injustice.” Id. at 618, 103 S.Ct. 1382 n. 8. Whether the law of the case doctrine applies at all is a question of law, which we review de novo. See Tang v. Dep’t of Elderly Affairs, 163 F.3d 7, 10-11 (1st Cir.1998). Strictly speaking, the law of the case doctrine — understood as a bar to subsequent review — -was not implicated in this case, because “[ijnterlocutory orders, including denials of motions to dis- ' miss, remain open to trial court reconsideration, and do not constitute the law of the case.” Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994). Thus, the district court was free to reconsider the earlier interlocutory order. We have sometimes said — instead of an outright statement that law of the case is not applicable to interlocutory orders at all — that law of the case permits a lower court to review prior interlocutory orders as long as that review is not an abuse of discretion. Were the law of the case doctrine even to apply, then, we would review only for abuse of discretion. See Geffon v. Micrion Corp., 249 F.3d 29, 38 (1st Cir.2001) (reviewing a district court’s reconsideration of its own prior ruling on summary judgment motion for abuse of discretion); see also In re Cabletron Sys., 311 F.3d 11, 21 n. 2 (1st Cir. 2002) (“The law of the case is a discretionary doctrine, especially as applied to interlocutory orders such as this one. As Justice Holmes expressed it, ‘[T]he" }, { "docid": "6456350", "title": "", "text": "of September 13, 1995, vacated the scheduled trial date of October 30, 1995, and ordered counsel to re-brief Shell's motion for summary judgment. Shell filed an amended motion for summary judgment with a supporting memorandum and fact statement, but Best filed nothing. Before this court, Best has represented that he elected to stand on his memorandum and fact statement of December 1994, but this was apparently unclear to Magistrate Judge Bo-brick, who noted in footnote 1 of his order that Best had not only missed the deadlines for filing his response to Shell’s renewed or amended motion, but he had also, without any explanation, failed to appear at a status conference set for November 30. As a result, Magistrate Judge Bobrick deemed Shell’s statement of facts to be admitted, and on that basis, he granted Shell’s motion. This appeal followed. Ill Best begins by arguing that Magistrate Judge Bobrick’s decision to re-open Shell’s motion for summary judgment violated the law of the case, which had been established in Judge Holderman’s earlier ruling. We are dealing here with the variant of the law of the case doctrine that relates to the re-examination of a prior ruling by a different member of the same court, as opposed to a judge’s reconsideration of her own earlier ruling, or a lower court’s obligation to honor the mandate of a superior court within a single judicial system. See generally 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478 at 788 (1981). As this court explained in Williams v. C.I.R., 1 F.3d 502 (7th Cir.1998), the law of the case doctrine in these circumstances reflects the rightful expectation of litigants that a change of judges mid-way through a ease will not mean going back to square one. See also Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816-17, 108 S.Ct. 2166, 2177-78, 100 L.Ed.2d 811 (1988). Although the second judge may alter previous rulings if he is convinced they are incorrect, “he is not free to do so ... merely because he has a different view of" }, { "docid": "23384747", "title": "", "text": "appeal. All that would do is waste both the courts’ and litigants’ time and resources. Thus, Wright and Miller have observed that, although “[i]t is proper [for a district judge] to refuse to reconsider a summary judgment ruling!,] • • • Menial of summary judgment often is reconsidered.” 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4478.1 (2002). “Denial can easily be followed,” as it was here, “by judgment as a matter of law or dismissal after trial.” Id. Peralta’s case illustrates the point. The evidence introduced at trial went beyond that presented in the motion for summary judgment. See Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir.2002). Dillard and Fitter moved for summary judgment on the grounds that (1) Peralta hadn’t presented expert evidence and (2) Dillard and Fitter weren’t personally involved in Peralta’s care. The district court found that the lack of an expert alone wasn’t enough to entitle Fitter and Dillard to summary judgment, and that there were material questions of fact as to whether Peralta had a serious medical need, what kind of care Peralta received at the prison and when Fitter and Dillard became aware of Peralta’s complaints. The court noted, for example, that “[wjhether or not Dillard personally signed the Second Level Appeal, authorized someone else to sign on his behalf, or was wholly unaware of the document is a question of fact.” But after Peralta had presented his case, the court found that there was no evidence that either doctor knew about Peralta’s alleged condition. Therefore, the district court didn’t abuse its discretion in granting Dillard and Fitter judgment as a matter of law. See Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 714-15 (9th Cir.1990). AFFIRMED. CHRISTEN, Circuit Judge, with whom RAWLINSON, M. SMITH, and HURWITZ, Circuit Judges, join, and with whom BYBEE, Circuit Judge, joins as to Parts I, II, and III, dissenting in part and concurring in part: Twenty years ago, the United States Supreme Court observed: “The Constitution does not mandate comfortable prisons, but" }, { "docid": "17516448", "title": "", "text": "mere materials supplier to Redondo rather than a subcontractor. B. District Court’s Earlier Rulings Bethlehem argues that Judge Dominguez committed reversible error in failing to follow Judge Pérez-Giménez’ prior rulings on Redondo and American International’s motions for summary judgment. In short, Bethlehem’s contention is that the district court’s prior rulings constitute the “law of the case.” However, “[i]n this circuit the ‘law of the case’ doctrine has not been construed as an inflexible straightjacket that invariably requires rigid compliance with the terms of the mandate.” Northeast Util. Serv. Co. v. FERC, 55 F.3d 686, 688 (1st Cir.1995). We do not find the “law of the case” doctrine to preclude any reconsideration of an issue already settled. See Pérez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994). Even if the doctrine posed an absolute bar to reconsideration, in the instant case, the denial of the summary judgment motions do not constitute the law of the ease. See id. (“[ijnterloeutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the ease”). Accordingly, Judge Dominguez did not err in granting appellees’ renewed motion for summary judgment once he was assigned the case. III. CONCLUSION For the foregoing reasons, we affirm the opinion and order of the district court." }, { "docid": "8500410", "title": "", "text": "and essential to provide an opportunity to meet the issues that are raised by a revised ruling. Once reconsideration has been completed, however, a court may pardonably refuse to consider a tardy law-of-the-case objection. The pretrial rulings that may be reconsidered in continuing pretrial proceedings span the full range of pretrial activity. Some pretrial rulings are avowedly preliminary, designed to maintain order while gathering information and resources for reconsideration. An order granting or denying a preliminary injunction, for example, rests on tentative findings that are subject to reconsideration, either at trial or during later stages of pretrial proceedings. Rulings on the sufficiency or amendment of pleadings are easily modified or retracted, in keeping with the generally subordinate role played by pleading in modern practice. Denial of a motion to dismiss may be followed by an order granting dismissal, or — in the very nature of the difference between a ruling on the pleadings and an examination of the record — an order granting summary judgment. Summary judgment orders provide innumerable further examples. It is proper to refuse to reconsider a summary judgment ruling. But denial of summary judgment often is reconsidered and followed by an order granting summary judgment, or by inconsistent action at trial---- ... Denial of class-action certification may be followed by certification. 18B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Vikram David Amar, Richard D. Freer, Helen Hershkoff, Joan E. Steinman & Catherine T. Struve, Federal Practice & Procedure § 4478.1 (2d ed.). The above passage describes the general principles for applying law-of-the-case doctrine to interlocutory orders, but it would seem that the specific context involved here — a motion to reconsider a denial of class certification — would arise commonly enough for courts to have developed some common practice of handling these motions. As it happens, there is a well-worn path to moving to reconsider a class certification denial, and it leads directly uphill. A prominent class-action treatise — one generally regarded as being plaintiff-friendly — describes the consensus standard that has developed at the district-court level for analyzing such motions: Rule 23 enables" }, { "docid": "22829866", "title": "", "text": "Forest Serv., 108 F.3d 1082, 1087 (9th Cir.1997). By contrast, the public right of access to court documents is grounded on principles related to the public’s right and need to access court proceedings. See Friedman, 738 F.2d at 1344. Thus, we will not import wholesale FOIA exemptions as new categories of documents “traditionally kept secret” under Times Mirror. III. Non-Dispositive Motions—Documents Covered by the “Good Cause” Standard Finally, we address the magistrate judge’s decision to unseal the documents attached to non-dispositive motions. The City claims that in adopting the reports of the special master, the magistrate judge made a good cause determination to which she was bound by the law of the case. Under the City’s theory, the judge was thus precluded from undertaking a later review and reclassification of the documents. Under the law of the case doctrine, a court “is generally precluded from reconsidering an issue previously decided by the same court ... in the identical case.” United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir.2000) (citing Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir.1990)). Nonetheless, a trial judge has broad discretion to reconsider her own interlocutory, pre-trial evidentiary rulings, particularly when no jury trial is involved. See Amarel v. Connell, 102 F.3d 1494, 1515, 1516 (9th Cir.1996) (“ ‘[T]he interlocutory orders and rulings made pre-trial by a district judge are subject to modification by the district judge at any time prior to final judgment ....’”) (quoting In re United States, 733 F.2d 10, 13 (2d Cir.1984)). In Amarel, we faced the “delicate problem of two district judges exercising their ‘broad discretion’ over evidentiary rulings in different phases of the same case and reaching contradictory results.” Id. at 1515. We held that it was not an abuse of discretion for the second district judge to allow the admission of evidence prohibited by the first district judge, id. at 1516, because “[t]here is ‘no imperative duty to follow the earlier [evidentiary] ruling — only the desirability that suitors shall, so far as possible, have reliable guidance how to conduct their" }, { "docid": "23038889", "title": "", "text": "along with the offices they held during the relevant period, are: S. Robert Levine, who served as president, chief executive officer, and a member of the board of directors until his retirement on or about August 6, 1997, in the middle of the class period; Craig Benson, the chairman of the board of directors, chief operating officer, and treasurer; David J. Kirkpatrick, the director of finance and chief financial officer; Christopher J. Oliver, the director of engineering and manufacturing; and three members of the board of directors who were not officers of Cabletron: Paul R. Duncan, Donald F. McGuinness, and Michael D. Myerow. . Mesko suggests that this ruling by Judge Devine foreclosed later consideration in the district court of the defendants’ subsequently renewed motion to dismiss, under the \"law of the case” doctrine. That is incorrect. The law of the case is a discretionary doctrine, especially as applied to interlocutory orders such as this one. See Perez-Ruiz v. Crespo- Guillen, 25 F.3d 40, 42 (1st Cir.1994) (\"Interlocutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the case.”). As Justice Holmes expressed it, \"[T]he phrase, law of the case, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912). Reconsideration is also appropriate because defendants filed a motion to strike the complaint hours before Judge Devine issued his sua sponte order, so that he did not have their arguments before him. . Before his decision to recuse himself, Judge DiClerico first ordered counsel to supply lists identifying all federal and state securities class action suits in which their firms appeared. At that point, Mesko did file a motion seeking a status conference and asking that these lists be submitted in camera or under seal. Once this motion was denied, Mesko's attorneys produced" }, { "docid": "8500399", "title": "", "text": "on the amount of time and energy the Court spent on it, and on the amount of time and energy the parties spent on it — in briefing and orally arguing the issue, but especially if they developed evidence on the issue. A movant for reconsideration thus faces a steeper uphill challenge when the prior ruling was on a criminal suppression motion, class certification motion, or preliminary injunction, than when the prior ruling is, e.g., a short discovery ruling. The Court should also look, not to the overall thoroughness of the prior ruling, but to the thoroughness with which the Court addressed the exact point or points that the motion to reconsider challenges. A movant for reconsideration thus faces an easier task when he or she files a targeted, narrow-in-scope motion asking the Court to reconsider a small, discrete portion of its prior ruling than when he or she files a broad motion to reconsider that rehashes the same arguments from the first motion, and essentially asks the Court to grant the movant a mulligan on its earlier failure to present persuasive argument and evidence. Second, the Court should consider the case’s overall progress and posture, the motion for reconsideration’s timeliness relative to the ruling it challenges, and any direct evidence the parties may produce, and use those factors to assess the degree of reasonable reliance the opposing party has placed in the Court’s prior ruling. See 18B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Vikram David Amar, Richard D. Freer, Helen Hershkoff, Joan E. Steinman & Catherine T. Struve, Federal Practice & Procedure § 4478.1 (2d ed.)(“Stability becomes increasingly important as the proceeding nears final disposition----Reopening should be permitted, however, only on terms that protect against reliance on the earlier ruling.”). For example, if a defendant (i) spends tens of thousands of dollars removing legacy computer hardware from long-term storage; then (ii) obtains a protective order in which the Court decides that the defendant need not produce the hardware in discovery; then (iii) returns the hardware to long-term storage, sustaining thousands more in expenses; and (iv) several" }, { "docid": "17516447", "title": "", "text": "explicitly defines “work” as “any construction, reconstruction, alteration, extensions, or improvements, made under a contract awarded to a contractor by the Commonwealth of Puerto Rico.” P.R. Laws Ann. tit. 22, § 58 (official translation). Thus, we need not turn to Black’s Law Dictionary or any other secondary source to determine the meaning of the term. We can simply look to the definition in the statute. The record reflects that Redondo paid Transeo not only to supply the steel, but also to unload it off the docks onto flatbed trailers for delivery to the construction site. Bethlehem avers that, for logistical reasons, Transco did not unload the steel onto flatbed trucks, but rather placed it directly onto the docks. However, even assuming arguendo that Transco did unload the steel onto Redondo’s trucks, the labor involved in completing the delivery of construction materials is not considered “work” under Law 388. Transco did not make “any construction, reconstruction, alteration, extensions, or improvements,” id., under Redondo’s general contract with the Highway Authority. Consequently, under Law 388, Transco was a mere materials supplier to Redondo rather than a subcontractor. B. District Court’s Earlier Rulings Bethlehem argues that Judge Dominguez committed reversible error in failing to follow Judge Pérez-Giménez’ prior rulings on Redondo and American International’s motions for summary judgment. In short, Bethlehem’s contention is that the district court’s prior rulings constitute the “law of the case.” However, “[i]n this circuit the ‘law of the case’ doctrine has not been construed as an inflexible straightjacket that invariably requires rigid compliance with the terms of the mandate.” Northeast Util. Serv. Co. v. FERC, 55 F.3d 686, 688 (1st Cir.1995). We do not find the “law of the case” doctrine to preclude any reconsideration of an issue already settled. See Pérez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994). Even if the doctrine posed an absolute bar to reconsideration, in the instant case, the denial of the summary judgment motions do not constitute the law of the ease. See id. (“[ijnterloeutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute" } ]

[ { "docid": "22426344", "title": "", "text": "to pay for the goods or services he steals, the FDCPA limits its reach to those obligations to pay arising from consensual transactions, where parties negotiate or contract for consumer-related goods or services. See, e.g., Shorts v. Palmer, 155 F.R.D. 172, 175-76 (S.D.Ohio 1994) (obligation to pay for shoplifted merchandise not a “debt” under the FDCPA because “plaintiff has never had a contractual arrangement of any kind with any of the defendants.”); Mabe v. G.C. Services Ltd. Partnership, 32 F.3d 86, 88 (4th Cir.1994) (obligation to pay child support not a “debt” under the FDCPA because it was not incurred in exchange for consumer goods or services). However, to the extent that the Zimmerman court creates a requirement that only credit-based transactions constitute “debt” under the FDCPA, we must respectfully part ways. In reaching this conclusion, the court neither considered the plain language of the definition of “debt,” nor examined the legislative history, but rather relied solely on the Act’s codification as an amendment to the CCPA. As we discuss infra, Congress’ choice of statutory structure as evidence of intent is unnecessary given the Act’s clear textual definition of the term “debt,” and is also outweighed by the more persuasive forms of intent evidenced in the Act’s legislative history. III. Even if the language in the Act’s definition of “debt” was so unclear as to require our resort .to extrinsic sources, these sources only further support our holding today. Consideration of the full body of legislative history of the Act, as opposed to the snippets quoted by the appellants, serves to reinforce a finding that non-credit transactions are included in the Act’s purview. 'First, legislative history reveals that Congress contemplated this very issue yet refused to require that “debt” covered by the Act arise only from a credit transaction. Early versions of the Act clearly included a credit extension requirement in defining “debt” as “any obligation arising out of a transaction in which credit is offered or extended to an individual, and the money, property, or services which are the subject of the transaction are primarily for personal, family, or" } ]

[ { "docid": "19593480", "title": "", "text": "We had a different view, however, of the homeowners' water and sewer utility obligations. Those obligations, we held, did constitute FDCPA \"debt\" because \"[a]t the time [they] first arose, homeowners ('consumers' of water and sewer services) had an 'obligation ... to pay money' to the government entities which arose out of a 'transaction' (requesting water and sewer services) the subject of which was 'services ... primarily for personal, family, or household purposes.' \" Id. at 400. The consumer's affirmative \"request,\" we explained, transformed the relationship between the government and homeowner into a \"transaction,\" id. , and the flow of the water directly into the household for personal consumption by the consumer rendered that transaction \"primarily for personal, family, or household purposes,\" id. (quoting 15 U.S.C. § 1692a(5) ). Finally, in Piper v. Portnoff Law Associates, Ltd. , 396 F.3d 227 (3d Cir. 2005), we again held that transactions involving utility services gave rise to \"debt\" because \"whenever a homeowner voluntarily elects to avail himself of municipal water/sewer services, in whatever manner, and thereby incurs an obligation to pay for such services, there is the kind of pro tanto exchange contemplated by the FDCPA.\" Id. at 233 n.8. We also observed that \"[t]he consensual nature of the transaction distinguishe[d] [Pennsylvania water and sewer service] from tax assessments which Pollice held to not be debts within the meaning of the FDCPA,\" emphasizing that the consumer's usage \"was metered in the normal fashion and ... the amount of their obligation to pay was based on the amount of water they chose to use.\" Id. From these cases, we distill a three-part test to evaluate whether an obligation constitutes \"debt\" under the FDCPA. First, we consider whether the underlying obligation \"aris[es] out of a transaction,\" 15 U.S.C. § 1692a(5) -that is, a consensual exchange involving an affirmative \"request,\" Pollice , 225 F.3d at 400, and \"the rendition of a service or purchase of property or other item of value,\" Staub , 626 F.2d at 278, such as a contract-or whether, instead, it arises by virtue of a legal status-that is, an involuntary obligation attendant" }, { "docid": "14519810", "title": "", "text": "directed others to sign in her name-many of the communications at issue that were sent by PLA to the Plaintiff, is in a similar situation to the defendants in Teng. She both acted as a debt collector within the meaning of the Act and took affirmative actions with respect to Plaintiffs account. As a result, this court holds that Defendants Portnoff and Schmidt can be subject to individual liability under the FDCPA. E. Trash Fees as Debts Unlike their prior arguments, Defendants’ contention that they cannot be held liable under the FDCPA because the municipal trash assessments at issue here do not qualify as “debts” within its meaning — but instead are more akin to a per capita tax — cannot be evaluated at the summary judgment stage. The FDCPA only authorizes a cause of action incident to the collection of a debt, which is defined by the Act as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). In interpreting Section 1692a(5), the Third Circuit has drawn a distinction between an obligation to pay a per capita tax — -which does not qualify as a debt— and an obligation to pay money as the result of a pro tanto exchange — which does. Pollice, 225 F.3d at 400-02; Staub v. Harris, 626 F.2d 275, 277-78 (3d Cir.1980). Other courts have agreed with this result, applying the same dichotomy in order to categorize a host of various payment obligations. See, e.g., Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir.1998) (relying on Staub and finding that personal property taxes were akin to a per capita tax and, therefore, collection of same was not subject to the FDCPA); Agosta v. InoVision, Inc., 2003 WL 23009357, at *6 n. 9 (E.D.Pa. Dec.16, 2003) (citing Pollice and explaining that plaintiffs disputed utility account with PECO constituted a debt because" }, { "docid": "12042502", "title": "", "text": "value.” Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir. 1998) (quoting Staub v. Harris, 626 F.2d 275 (3d Cir.1980)). The statute’s legislative history is, not surprisingly, bereft of any indication about whether overpaid salary constitutes a debt and there are no reported federal cases addressing the issue. Nevertheless, there are two Second Circuit cases that the Court finds illuminating. In Romea v. Heiberger & Assoc., 163 F.3d 111 (2d Cir.1998), a tenant brought suit against his landlord’s law firm alleging that the firm’s notice demanding back-rent violated the FDCPA. The defendant law firm argued, among other things, that the plaintiffs claim should be dismissed because back-rent was not a debt within the meaning of the FDCPA. The Court disagreed finding that back-rent was a debt for • FDCPA purposes. The Court noted that “[b]ack rent by its nature is an obligation that arises only from the tenant’s failure to pay the amounts due under the contractual lease transaction.” Id. at 115. The Court also likened the payment of back-rent to the obligation arising from a dishonored check — a debt clearly within the purview of the FDCPA — “where a service has been rendered or goods [were] sold on the premise of immediate payment.” Id. By contrast, in Beggs v. Rossi, 145 F.3d 511, the Second Circuit found that personal property taxes are not debts within the meaning of the FDCPA. Relying in part on the Third Circuit’s analysis in Staub, the Court found that, in the context of property taxes, “[t]here is simply no ‘transaction’ ... of the kind contemplated by the statute.” Although the debt at issue here is distinct from the debts at issue in either Beggs or Romea,, the Court finds the Second Circuit’s analysis in these two cases to be instructive. Here, unlike Romea, there was no consumer transaction that gave rise to the debt. The Plaintiffs debt arose, apparently, out of an accounting error when her former employer allegedly overpaid her $2,042.77 in salary. In the Court’s view, this is not the type of debt contemplated by the FDCPA because the overpayment of" }, { "docid": "3010577", "title": "", "text": "Booth, 858 F.2d 1051 (5th Cir.1988). These cases do not change or detract from our analysis. . See 15 U.S.C. § 1692(a) (defining \"debt,” under the Fair Debt Collection Practices Act, as \"any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes”); 15 U.S.C. § 1602(h) (defining, under the Truth in Lending Act, a \"consumer loan” as \"[a transaction] in which the party to whom credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, or household purposes”). . We note that at least two sister circuits have suggested that taxes should not be considered \"debt” under the Fair Debt Collection Practices Act. For example, Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir.1998), states: The [Fair Debt Collection Practices Act] defines a \"debt” as \"any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). In determining that the personal property taxes at issue in this case are not \"debts” within the meaning of the FDCPA, the district court relied principally upon the decision of the Court of Appeals for the Third Circuit in Staub v. Harris, 626 F.2d 275 (3d Cir.1980). In Staub, the Third Circuit held that \"at a minimum, the statute contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value. The relationship between taxpayer and taxing authority does not encompass that type of pro tanto exchange which the statutory definition envisages.” Id. at 278. We agree with the district court that Staub is persuasive authority and is dispositive in this case. . Westberry" }, { "docid": "12042501", "title": "", "text": "117, 121 (2d Cir.2007). B. As to the Defendant’s Motion to Dismiss “The purpose of the FDCPA is to protect consumers from abusive, harassing, threatening, misleading and otherwise unscrupulous debt collection practices.” Meselsohn v. Lerman, 485 F.Supp.2d 215, 218 (E.D.N.Y.2007). Here, the Plaintiff contends that the Defendant violated the statute by requesting that she contact them “at once” before providing verification of the overpaid salary. The Defendant argues that the Plaintiffs complaint fails to state a claim because the overpaid salary at issue is not a debt within the meaning of the FDCPA. The statute defines a “debt” as any “obligation ... of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes ...” 15 U.S.C. § 1692a(5). The Second Circuit has observed that “at a minimum, the statute contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value.” Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir. 1998) (quoting Staub v. Harris, 626 F.2d 275 (3d Cir.1980)). The statute’s legislative history is, not surprisingly, bereft of any indication about whether overpaid salary constitutes a debt and there are no reported federal cases addressing the issue. Nevertheless, there are two Second Circuit cases that the Court finds illuminating. In Romea v. Heiberger & Assoc., 163 F.3d 111 (2d Cir.1998), a tenant brought suit against his landlord’s law firm alleging that the firm’s notice demanding back-rent violated the FDCPA. The defendant law firm argued, among other things, that the plaintiffs claim should be dismissed because back-rent was not a debt within the meaning of the FDCPA. The Court disagreed finding that back-rent was a debt for • FDCPA purposes. The Court noted that “[b]ack rent by its nature is an obligation that arises only from the tenant’s failure to pay the amounts due under the contractual lease transaction.” Id. at 115. The Court also likened the payment of back-rent to the obligation arising from" }, { "docid": "19593476", "title": "", "text": "is the \"threshold requirement\" that the prohibited collection practices relate to a \"debt,\" Zimmerman v. HBO Affiliate Grp. , 834 F.2d 1163, 1167 (3d Cir. 1987), which the FDCPA defines as \"any obligation ... of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes,\" 15 U.S.C. § 1692a(5). As the terms \"transaction\" and \"personal, family, or household purposes\" are not further defined in the statute, the definition of \"debt\" has proven elusive. In an effort to pin it down as to highway tolls, we review the few cases to date in which we have marked its bounds. 1. Relevant Precedent Concerning FDCPA \"Debt\" We have addressed the definition of FDCPA \"debt\" in only four cases. In Staub v. Harris , 626 F.2d 275 (3d Cir. 1980), we held that a delinquent per capita tax levied by a Pennsylvania taxing district against the plaintiffs was not \"debt\" encompassed by the FDCPA. Id. at 278. Without deciding whether the term \" 'transaction' as used in the FDCPA always connotes the existence of an underlying contractual relationship,\" we concluded that, \"at a minimum, the statute contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value.\" Id. By contrast, \"[t]he relationship between taxpayer and taxing authority,\" we held, \"does not encompass that type of pro tanto exchange which the statutory definition envisages\" because tax revenue is a \"public burden[ ] imposed generally upon the inhabitants\" used for \"nonpersonal purposes [such] as prisons, roads, defense, courts and other governmental services,\" and \"without reference to peculiar benefits to particular individuals[.]\" Id. (quoting Black's Law Dictionary 1307 (5th ed. 1979) ). Next, in Zimmerman v. HBO Affiliate Group , 834 F.2d 1163 (3d Cir. 1987), we held that the obligation that arose out of allegedly abusive collection letters sent by defendant cable television companies attempting to collect a sum of money to settle potential tort claims against plaintiffs for" }, { "docid": "20695226", "title": "", "text": "be resolved efficiently in either New York or Pennsylvania. Finally, the States share an interest in enabling plaintiffs to litigate FDCPA claims in their states of residence. See, e.g., Slugs v. Hand, 831 F.Supp. 321, 324 (S.D.N.Y.1993) (noting that FDCPA plaintiffs should be able to file suit in their states of residence because “[o]therwise, [debt collectors] could invoke the protection of distance and send violative letters with relative impunity, at least so far as less well-funded parties are concerned”). For these reasons, the District Court had personal jurisdiction over Kennedy pursuant to N.Y. C.P.L.R. § 302(a)(1). 2. Failure To State a Claim Under the FDCPA The District Court also concluded that the Plaintiffs failed to state a claim under the FDCPA for two reasons: the $8,000 payment sought by Kennedy was not a “debt” under the FDCPA; and Kennedy did not engage in the kind of conduct that would be actionable under the FDCPA. We consider each conclusion in turn. ■ a. Definition of “Debt” Under the FDCPA The FDCPA defines “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). “[A]t a minimum, the [FDCPA] contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value.” Beggs v. Rossi 145 F.3d 511, 512 (2d Cir.1998) (quotation marks omitted). Here, the $8,000 balance owed to Corry Manor constitutes a “debt” under the FDCPA. The balance arose out of a consumer transaction in which nursing home services were exchanged for a monetary obligation. As such, it “encompasses] that type of pro tanto exchange which the statutory definition envisages.” Boyd v. J.E. Robert Co., 765 F.3d 123, 126 (2d Cir.2014) (quotation marks omitted). The nursing home services—nursing care for Ms. Pike—were primarily for “personal” or “family” purposes. 15 U.S.C. § 1692a(5). Moreover, the Plaintiffs" }, { "docid": "22268534", "title": "", "text": "F.Supp.2d at 484 n. 9, this statement from Zimmerman has been widely disavowed by several other courts of appeals, which have taken the broader view that the FDCPA applies to all obligations to pay money which arise out of consensual consumer transactions, regardless of whether credit has been offered or extended. See, e.g., Romea v. Heiberger & Assocs., 163 F.3d 111, 114 n. 4 (2d Cir.1998) (noting that several circuits have “disavowed” the “dicta” in Zimmerman that the FDCPA applies only to transactions involving the “offer or extension of credit”); Brown v. Budget Rent-A-Car Sys., Inc., 119 F.3d 922, 924 n. 1 (11th Cir.1997) (rejecting Zimmerman “[t]o the extent that it read an extension of credit requirement into the definition of debt”); Bass v. Stolper, Koritzinsky, Brewster & Neider, 111 F.3d 1322, 1325-26 (7th Cir.1997) (rejecting Zimmerman and indicating that “[a]s long as the transaction creates an obligation to pay, a debt is created”); see also Wayne Hill, Annotation, What Constitutes “Debt” for Purposes of Fair Debt Collection Practices Act, 159 A.L.R. Fed. 121, 131, 2000 WL 150759 (2000) (“The term ‘debt’ as used in the [FDCPA] has been construed broadly to include any obligation to pay arising out of a consumer transaction.”). We are not bound by the “disavowed” statement in Zimmerman, as it was dictum. In our view, the plain meaning of section 1692a(5) indicates that a “debt” is created whenever a consumer is obligated to pay money as a result of a transaction whose subject is primarily for personal, family or household purposes. No “offer or extension of credit” is required. Accordingly, homeowners’ original obligations to pay the government entities for water and sewer service constituted “debts,” even though the government entities did not extend homeowners any right to defer payment of their obligations. We further agree with the district court’s conclusion that homeowners’ property tax obligations do not constitute “debts” under the FDCPA. In Staub v. Harris, 626 F.2d 275, we specifically held that a per capita tax obligation is not a “debt” for purposes of the FDCPA. Id. at 276-79. We stated that “at a" }, { "docid": "23585551", "title": "", "text": "jurisdiction. The district court consolidated the four cases for purposes of the hearing on the motions to dismiss. In an opinion dated January 6, 1994, the district court held that the obligation to pay child support assigned to the Commonwealth of Virginia is not a “debt” as defined by the FDCPA. The court accordingly granted GCS’s motion to dismiss the consolidated action. Appellants appeal the district court’s order dismissing the consolidated action. II. Congress enacted the FDCPA to protect consumers from unfair debt collection practices. Carroll v. Wolpoff & Abramson, 961 F.2d 459, 460 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 298, 121 L.Ed.2d 222 (1992); 15 U.S.C. § 1692(e). Consequently, a threshold requirement for application of the FDCPA is that the prohibited practices are used in an attempt to collect a “debt.” The term “debt” is defined in the FDCPA as: any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes. 15 U.S.C. § 1692a(5). The ease law interpreting this section of the FDCPA is sparse. At least two courts of appeals, however, have held that the type of “transaction” which creates a “debt” under the FDCPA is one in which “a consumer is offered or extended the right to acquire ‘money, property, insurance, or services’ which are ‘primarily for household purposes’ and to defer payment,” Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1168-69 (3d Cir.1987). Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1068 (9th Cir.1992) (holding that the FDCPA applies only to “consumer debts” incurred “primarily for personal, family, or household purposes”); Staub v. Harris, 626 F.2d 275, 278 (3d Cir.1980) (holding that “at a minimum, the [FDCPA] contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value”). In the instant ease, the appellants’ child support obligations arose out of an administrative support order issued by Virginia’s Department of Social Services" }, { "docid": "23585552", "title": "", "text": "are primarily for personal, family, or household purposes. 15 U.S.C. § 1692a(5). The ease law interpreting this section of the FDCPA is sparse. At least two courts of appeals, however, have held that the type of “transaction” which creates a “debt” under the FDCPA is one in which “a consumer is offered or extended the right to acquire ‘money, property, insurance, or services’ which are ‘primarily for household purposes’ and to defer payment,” Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1168-69 (3d Cir.1987). Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1068 (9th Cir.1992) (holding that the FDCPA applies only to “consumer debts” incurred “primarily for personal, family, or household purposes”); Staub v. Harris, 626 F.2d 275, 278 (3d Cir.1980) (holding that “at a minimum, the [FDCPA] contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value”). In the instant ease, the appellants’ child support obligations arose out of an administrative support order issued by Virginia’s Department of Social Services (“DSS”). These obligations, therefore, do not qualify as “debts” under the FDCPA because they were not incurred to receive consumer goods or services. Rather, the DSS imposed these obligations upon appellants to force them to fulfill their parental duty to support their children. Because the obligations at issue herein are not “debts” governed by the FDCPA , there was no federal question raised in the instant case. The decision of the district court is hereby AFFIRMED. . Federal regulations require that all recipients of AFDC assign to the state any rights to support they might have. 45 C.F.R. § 232.11(a)(1). . Appellants contend that the FDCPA does apply to the debts at issue because GCS agreed in its contract with Virginia to be bound by the terms of the FDCPA. We disagree. A private contract cannot create federal question jurisdiction simply by reciting a federal statutory standard. Oliver v. Trunkline Gas Co., 796 F.2d 86, 89-90 (5th Cir.1986) (“We are aware of no case in which any court, let alone the Supreme Court, has held" }, { "docid": "22820829", "title": "", "text": "the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). “Transaction is a word of flexible meaning.” Moore v. New York Cotton Exchange, 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750 (1926), and the statute does not define the nature of the “transaction(s)” which may give rise to a “debt.” The plaintiff argues that the statute protects consumers against abusive attempts to enforce an alleged obligation to pay money arising out of a transaction which may be either tortious or consensual in nature. The defendant argues that the statute is directed toward protecting legitimate contractual — or at least consensual— exchanges in which a consumer has allegedly obtained money, property or services by undertaking to pay for them. In Staub v. Harris, 626 F.2d 275 (3d Cir.1980), we held that a per capita tax levied by local taxing authorities does not fall within the statutory definition of the word debt. We found it unnecessary to decide whether a statutory “debt” must always result from a formal contract. Judge Sloviter, writing for the court, stated: We believe that, at a minimum, the statute contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value. The relationship between taxpayer and taxing authority does not encompass that type of pro tanto exchange which the statutory definition envisages. 626 F.2d at 278. The plaintiff argues that if the FDCPA is interpreted to apply only to contractual debts, a “deadbeat” who has a subscription for HBO service but does not pay for it is protected under the Act, while collectors may use abusive tactics to extract money from innocent persons who have not contracted for the service. The plaintiff also asserts that an offending collector could avoid the strictures of the Act simply by artfully characterizing the “debt” as arising from a tortious transaction. The plaintiff argues that Congress could not have intended such" }, { "docid": "22268535", "title": "", "text": "2000 WL 150759 (2000) (“The term ‘debt’ as used in the [FDCPA] has been construed broadly to include any obligation to pay arising out of a consumer transaction.”). We are not bound by the “disavowed” statement in Zimmerman, as it was dictum. In our view, the plain meaning of section 1692a(5) indicates that a “debt” is created whenever a consumer is obligated to pay money as a result of a transaction whose subject is primarily for personal, family or household purposes. No “offer or extension of credit” is required. Accordingly, homeowners’ original obligations to pay the government entities for water and sewer service constituted “debts,” even though the government entities did not extend homeowners any right to defer payment of their obligations. We further agree with the district court’s conclusion that homeowners’ property tax obligations do not constitute “debts” under the FDCPA. In Staub v. Harris, 626 F.2d 275, we specifically held that a per capita tax obligation is not a “debt” for purposes of the FDCPA. Id. at 276-79. We stated that “at a minimum, the statute contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value. The relationship between taxpayer and taxing authority does not encompass the type of pro tanto exchange which the statutory definition [of ‘debt’] envisages.” Id. at 278; see also Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir.1998) (following Staub and stating that in the tax situation “[t]here is simply no ‘transaction’ ... of the kind contemplated by the statute”). Staub is controlling here. Simply put, property taxes are not obligations “arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family,' or household purposes.” The Houck plaintiffs contend that the property tax obligations are “debts” because they arise out of the “transaction” in which each property owner acquired his or her property. See reply br. of appellants/cross-appellees in Nos. 99-3858 and 99-3859 at 47-48. We reject this argument. Unlike a sales tax, for example," }, { "docid": "22268536", "title": "", "text": "minimum, the statute contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value. The relationship between taxpayer and taxing authority does not encompass the type of pro tanto exchange which the statutory definition [of ‘debt’] envisages.” Id. at 278; see also Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir.1998) (following Staub and stating that in the tax situation “[t]here is simply no ‘transaction’ ... of the kind contemplated by the statute”). Staub is controlling here. Simply put, property taxes are not obligations “arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family,' or household purposes.” The Houck plaintiffs contend that the property tax obligations are “debts” because they arise out of the “transaction” in which each property owner acquired his or her property. See reply br. of appellants/cross-appellees in Nos. 99-3858 and 99-3859 at 47-48. We reject this argument. Unlike a sales tax, for example, which arguably arises from the sale transaction, the property taxes at issue here arose not from the purchase of property but from the fact of ownership. In Beggs, the Court of Appeals for the Second Circuit rejected an argument similar to that of the Houck plaintiffs regarding a tax on automobiles. See Beggs, 145 F.3d at 512. The court stated that “the tax is not levied upon the purchase or registration of the vehicle per se, but rather upon the ownership of the vehicle by the citizen”; thus, the court held that there was no “transaction” for purposes of the FDCPA. Id. (emphasis added). We agree with this reasoning. In attempting to distinguish Staub, the homeowners argue that the tax obligations changed in character and became “debts” when they were assigned to NTF. We disagree. Although the tax claims were transferred to a private entity, the homeowners’ obligation to pay the claims still did not “aris[e] out of a transaction in which the money, property, insurance, or services which are the subject of the transaction" }, { "docid": "7756053", "title": "", "text": "the district court declined to exercise supplemental jurisdiction over the remaining state law claim., We affirm, substantially for the reasons stated by the district court in its opinion reported at 994 F.Supp. 114 (D.Conn.1997). The FDCPA defines a “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). In determining that the personal property taxes at issue in this case are not “debts” within the meaning of the FDCPA, the district court relied principally upon the decision of the Court of Appeals for the Third Circuit in Staub v. Harris, 626 F.2d 275 (3d Cir.1980). In Staub, the Third Circuit held that “at a minimum, the statute contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value. The relationship between taxpayer and taxing authority does not encompass that type of pro tanto exchange which the statutory definition envisages.” Id. at 278, We agree with the district court that Staub is persuasive authority and is dispositive in this case. Plaintiffs attempt to distinguish Staub on the ground that, unlike the “per capita tax” at issue in that case, in the instant case the “personal property tax [at issue here] is an excise tax, quintessentially a transaction-based tax, such as stamp taxes, stock transfer taxes, alcohol or tobacco taxes.” However, as the district court observed, the tax is not levied upon the purchase or registration of the vehicle per se, but rather upon the ownership of the vehicle by the citizen. See Beggs v. Rossi, 994 F.Supp. 114, 117-18 (D.Conn.1997). There is simply no “transaction” here of the kind contemplated by the statute. We note that the Federal Trade Commission (“FTC”), in its policy statement interpreting the FDCPA, has concluded that “[t]he term [debt] does not include: unpaid taxes.” Federal Trade Commission, Statements" }, { "docid": "20695227", "title": "", "text": "or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). “[A]t a minimum, the [FDCPA] contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value.” Beggs v. Rossi 145 F.3d 511, 512 (2d Cir.1998) (quotation marks omitted). Here, the $8,000 balance owed to Corry Manor constitutes a “debt” under the FDCPA. The balance arose out of a consumer transaction in which nursing home services were exchanged for a monetary obligation. As such, it “encompasses] that type of pro tanto exchange which the statutory definition envisages.” Boyd v. J.E. Robert Co., 765 F.3d 123, 126 (2d Cir.2014) (quotation marks omitted). The nursing home services—nursing care for Ms. Pike—were primarily for “personal” or “family” purposes. 15 U.S.C. § 1692a(5). Moreover, the Plaintiffs are “consumers” because Kennedy claims that they are obligated to pay the balance, id. § 1692a(3) (defining “consumer” as “any natural person obligated or allegedly obligated to pay any debt”), and for the same reason, the balance is an “alleged obligation of a consumer,” id. § 1692a(5). We appreciate that some other courts have held that an arguably analogous statutory obligation, child support, is not a debt under the FDCPA. For example, the Fourth Circuit held that child support obligations “do not qualify as ‘debts’ under the FDCPA because they were not incurred to receive consumer goods or services[;] [r]ather, [a state agency] imposed these obligations upon appellants to force them to fulfill their parental duty to support their children.” Mabe v. G.C. Servs. Ltd. P’ship, 32 F.3d 86, 88 (4th Cir.1994). Kennedy argues that the Plaintiffs’ obligation to pay similarly arises from Pennsylvania’s indigent support and fraudulent transfer statutes and as such does not qualify as a “debt.” We disagree. In determining whether an obligation is a “debt” under the FDCPA, the relevant consideration" }, { "docid": "3010578", "title": "", "text": "obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). In determining that the personal property taxes at issue in this case are not \"debts” within the meaning of the FDCPA, the district court relied principally upon the decision of the Court of Appeals for the Third Circuit in Staub v. Harris, 626 F.2d 275 (3d Cir.1980). In Staub, the Third Circuit held that \"at a minimum, the statute contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value. The relationship between taxpayer and taxing authority does not encompass that type of pro tanto exchange which the statutory definition envisages.” Id. at 278. We agree with the district court that Staub is persuasive authority and is dispositive in this case. . Westberry does not argue that these statutes are in conflict, which would, of course, require us to interpret the statutes so as to give effect to each law. . Because we have determined that income taxes are not consumer debt under the § 1301 codebtor stay, we need not reach the issue of whether the Anti-Injunction Act, 26 U.S.C. § 7421(a), prevents enforcement of the co-debtor stay on income taxes. See In re Pressimone, 39 B.R. at 244." }, { "docid": "23620360", "title": "", "text": "insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. 15 U.S.C. § 1692a(5). Thus, whether the undisputed facts alleged in the complaint establish the existence of debt within the meaning of § 1692a(5) is a question of law. This determination requires us to examine the alleged “transaction” and determine whether it is covered by the FDCPA. We have held that “at a minimum, a ‘transaction’ under the FDCPA must involve some kind of business dealing or other consensual obligation.” Turner, 362 F.3d at 1227. The FDCPA, therefore, does not apply where a defendant attempts to collect a state court judgment for damages as a result of tortious conduct. Id. at 1228. Other circuits have addressed criminal wrongdoing or tortious acts in the context of FDCPA claims, concluding that the obligation to pay for criminal or tortious actions does not constitute a “debt.” See, e.g., Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1326 (7th Cir.1997) (“[A]lthough a thief undoubtedly has an obligation to pay for the goods or services he steals, the FDCPA limits its reach to those obligations to pay arising from consensual transactions, where parties negotiate or contract for consumer-related goods or services.”); Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1168 (3d Cir.1987) (“[N]othing in the statute or the legislative history leads us to believe that Congress intended to equate asserted tort liability with asserted con sumer debt.”); Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1371 (11th Cir. 1998) (holding that “debt” under the FDCPA is limited to liability arising out of consensual, consumer transactions, and not tortious activity). Plaintiffs argue that they were in consensual and contractual relationships with Ace because Ace consented to employ Barnes, so that he could sell its merchandise, and to allow Plaintiffs to purchase the merchandise. Plaintiffs fail to recognize, however, that Ace did not consent to Barnes’s stealing the merchandise, selling it at a discount, or pocketing the proceeds. Barnes’s actions far exceeded the scope of Ace’s" }, { "docid": "7756052", "title": "", "text": "PER CURIAM: Plaintiffs Brian and Jennifer Beggs are former residents of the Town of Exeter, Rhode island, who moved to Connecticut in 1989. Defendants, who run a consumer debt collection service, contacted plaintiffs on behalf of the Town of Exeter and sought to collect personal property taxes levied upon plaintiffs’ automobiles by the Town. Plaintiffs brought this action alleging that certain debt collection practices undertaken by defendants violated the federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen.Stat. § 42-110a. The United States District Court for the District of Connecticut (Robert N. Chatigny, Judge), adopting the recommended ruling of Magistrate Judge Donna F. Martinez, held that the personal property tax obligations at issue in this case do not constitute “debts” within the meaning of the FDCPA, and that defendants’ efforts to collect plaintiffs’ tax obligations are therefore not covered under that Act. Having dismissed the FDCPA cause of action for failure to state a claim upon which relief could be granted, the district court declined to exercise supplemental jurisdiction over the remaining state law claim., We affirm, substantially for the reasons stated by the district court in its opinion reported at 994 F.Supp. 114 (D.Conn.1997). The FDCPA defines a “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). In determining that the personal property taxes at issue in this case are not “debts” within the meaning of the FDCPA, the district court relied principally upon the decision of the Court of Appeals for the Third Circuit in Staub v. Harris, 626 F.2d 275 (3d Cir.1980). In Staub, the Third Circuit held that “at a minimum, the statute contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of" }, { "docid": "2629020", "title": "", "text": "money for water and sewer services that were primarily for personal, family, or household purposes, the delinquent water and sewer bills qualified as debt under the FDCPA. Although the defendants argue that the water and sewer assessments in Pollice were levied against the individuals rather than the real property, a debt collector’s decision to proceed in rem rather than in personam is insignificant when determining whether the underlying obligation falls within the FDCPA’s statutory definition. If a debt collector were able to avoid liability under the FDCPA simply by choosing to proceed in rem rather than in personam, it would undermine the purpose of the FDCPA. Therefore, PLA sought to recover a debt as defined by the FDCPA. Defendants also argue that municipal claims against real property do not arise out of a consumer transaction; therefore, the FDCPA does not apply to defendants’ letters. In Staub v. Harris, the Third Circuit held that in order for a debt to arise from a transaction within the meaning of the FDCPA, the obligation must be the result of a pro tanto exchange. 626 F.2d 275. Defendants maintain that Bethlehem water services are not requested but instead are fairly apportioned between and among all real property owners. Therefore, the municipal assessments and liens enforced by PLA on behalf of Bethle hem are not pro tanto transactions but “public burdens imposed generally upon the inhabitants of the whole municipality.” Staub, 626 F.2d at 278. The Pollice court relied on Staub to conclude that tax obligations are not debts under the FDCPA. As the Third Circuit explained “at a minimum, the statute contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value. The relationship between taxpayer and taxing authority does not encompass the type of pro tanto exchange which the statutory definition [of debt] envisages.” Pollice, 225 F.3d at 401 (quoting Staub, 626 F.2d at 278). However, as previously discussed, the Pollice court found that delinquent water and sewer bills did meet the definition of debt. In this case, the City" }, { "docid": "14519811", "title": "", "text": "are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). In interpreting Section 1692a(5), the Third Circuit has drawn a distinction between an obligation to pay a per capita tax — -which does not qualify as a debt— and an obligation to pay money as the result of a pro tanto exchange — which does. Pollice, 225 F.3d at 400-02; Staub v. Harris, 626 F.2d 275, 277-78 (3d Cir.1980). Other courts have agreed with this result, applying the same dichotomy in order to categorize a host of various payment obligations. See, e.g., Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir.1998) (relying on Staub and finding that personal property taxes were akin to a per capita tax and, therefore, collection of same was not subject to the FDCPA); Agosta v. InoVision, Inc., 2003 WL 23009357, at *6 n. 9 (E.D.Pa. Dec.16, 2003) (citing Pollice and explaining that plaintiffs disputed utility account with PECO constituted a debt because it arose out of a transaction for household purposes); Piper, 262 F.Supp.2d at 526 (citing Staub and Pollice and finding that delinquent water assessments resulted from a pro tanto exchange because water bills varied with usage, and, therefore, qualified as debts); Clay v. Melchionne, 2000 WL 1838368, at *2 (D.Conn. Dec.7, 2000) (discussing Staub and Pollice and holding that water usage fee owed to municipality was a debt under the FDCPA); Azar v. Hayter, 874 F.Supp. 1314, 1318-19 (N.D.Fla.1995) (citing Staub and explaining that condominium association fees assessed to all owners for costs of maintenance of common areas, absent evidence of a pro tanto exchange, were not debts). In Staub, the Third Circuit considered whether a per capita tax levied by a Pennsylvania taxing district was a debt within the meaning of Section 1692a(5). 626 F.2d at 276. The court answered that question in the negative, explaining its rationale in two important ways. First, although the court declined to explicitly decide whether the FDCPA’s definition of transaction required the existence of an underlying contractual relationship," } ]

[ { "docid": "10945804", "title": "", "text": "of the use of congressional power undertaken pursuant to the Taxing and Spending Clause. Valley Forge, 454 U.S. at 479-80, 102 S.Ct. at 762. Yet, as the First Circuit recently noted in Donnelly v. Lynch, supra, 691 F.2d at 1031, the Court gave no indication in Valley Forge that it intended to overrule the long line of cases establishing that, in contrast to federal taxpayers, municipal taxpayers have standing to challenge the allegedly unconstitutional use by a municipality of their tax dollars. Id. at 1031. The distinction, the First Circuit found, was made clear in Frothingham v. Mellon, 262 U.S. at 486-87, 43 S.Ct. at 600-01: “The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate.” Accordingly, in Donnelly v. Lynch, the First Circuit affirmed the district court’s finding that several residents and taxpayers of the City of Pawtucket had standing to contest, on Establishment Clause grounds, the city’s ownership and display of a life-sized Christian nativity scene as part of a city-sponsored outdoor Christmas exhibit on public property. The “injury” asserted by the individual plaintiffs in this ease cannot be distinguished on standing grounds from that suffered by the Lynch plaintiffs. This court therefore follows the First Circuit’s lead in holding that at least some of the present plaintiffs {e.g., Fausto, Busby, Lane) have standing as municipal taxpayers to challenge the City’s maintenance of the Memorial. Because these individual plaintiffs have thereby validly laid claim to an economic injury, even though it may be minimal, see Stone v. Graham, 449 U.S. 39, 42 n. 4, 101 S.Ct. 192, 194 n. 4, 66 L.Ed.2d 199 (1980) (per curiam), and because these plaintiffs have standing, the court need not consider whether they have also sustained non-eeonomic injuries sufficient independently to confer standing, or whether Cuillo’s move from Providence has deprived her of standing, or whether the RIACLU has standing to represent the interests of its members. Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70" } ]

[ { "docid": "7178841", "title": "", "text": "unconstitutional acts affecting public finances”), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986); Donnelly v. Lynch, 691 F.2d 1029, 1031 (1st Cir.1982) (no indication that Valley Forge intended to overrule cases establishing that municipal taxpayers have standing), rev’d on other grounds, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). 2. Elements of Municipal Taxpayer Standing a. Pocketbook Injury A taxpayer’s challenge to a state expenditure establishes a case or controversy “when it is a good-faith pocketbook action.” Doremus v. Board of Education, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L.Ed. 475 (1952). Doremus involved a challenge by state taxpayers to Bible reading in public schools. The Court recognized the distinction between municipal and federal taxpayer standing, but refused to accord standing to a state taxpayer absent evidence of “some direct injury,” id. (quoting Frothingham, 262 U.S. at 488, 43 S.Ct. at 601), i.e., a “measurable appropriation” of tax funds. Id. (discussing Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, (1947)). As Bible reading did not involve a “direct dollars-and-cents injury,” the taxpayers lacked standing. Id. One commentator has interpreted Doremus as requiring a taxpayer to challenge an activity involving an expenditure of public funds that would not otherwise be made. As the teachers in Doremus would be paid their salaries whether or not they read from the Bible, the challenged practice did not injure the taxpayers. See Note, Taxpayers’ Suits: A Survey and Summary, 69 Yale L.J. 895, 922 (1960). See also Bowen v. Kendrick, 108 S.Ct. at 2580 (“The AFLA is at heart a program of disbursement of funds pursuant to Congress’ taxing and spending powers, and appellees’ claims call into question how the funds authorized by Congress are being disbursed pursuant to the AFLA’s statutory mandate.”). Although Doremus involved only state taxpayers, the pocketbook injury requirement also applies to municipal taxpayers, as Doremus’ reference to Frothingham makes clear. For example, municipal taxpayers lack standing when they challenge a regulatory program that only incidentally involves expenditures of public funds. See e.g., Reich v. City of" }, { "docid": "10945802", "title": "", "text": "challenged action; and (iii) the injury is likely to be palliated by a favorable decision. See City of Los Angeles v. Lyons, 461 U.S. 95, -, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (Valley Forge); Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968); Munoz-Mendoza v. Pierce, 711 F.2d 421, 424-25 (1st Cir.1983). The individual plaintiffs in this case allege that they have been injured through defendants’ continued expenditure of plaintiffs’ municipal tax dollars on the maintenance of a religious symbol, in violation of the Establishment Clause. Because plaintiffs’ putative injuries can be directly traced to the challenged action and because the court has the power to redress the claimed harm, the individual plaintiffs clearly meet the second and third prongs of the standing test. The sole question of any moment is whether these plaintiffs meet the first requirement (actual or threatened harm). In Flast v. Cohen, the Supreme Court held that, despite the general rule of Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) (barring federal taxpayer standing to challenge the constitutionality of a federal statute), a federal taxpayer will have alleged a sufficient economic injury to confer standing if he or she alleges that congressional action under the Taxing and Spending Clause, Art. I, § 8, is in derogation of those constitutional provisions which operate to restrict that legislative power. 392 U.S. at 106, 88 S.Ct. at 1955. A premier limitation on Art. I, § 8 power is the Establishment Clause of the First Amendment, which was designed as a specific bulwark against governmental use of taxing and spending powers to exalt one religion over another or to aid religion in general. Id. at 104, 88 S.Ct. at 1954; S. Cobb, Rise of Religious Liberty in America 490-99 (1902); 2 Writings of James Madison 183, 186 (Hunt ed. 1901). Valley Forge appears to have limited the Flast exception to challenges" }, { "docid": "23101834", "title": "", "text": "764 n. 1 (9th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 322, 70 L.Ed.2d 163 (1981). The Riddles present no claim of violation of a personal right of religious freedom. In the complaint, their only interest is iden tified as their taxpayer status. Appellants assert that the Riddles are the parents of school-age children in the district, but not that the children have attended public school there. The Riddles do not have standing to pursue their free exercise claims. B. Establishment Claims Appellants have standing to challenge alleged violations of the establishment clause of the First Amendment if they are directly affected by use of The Learning Tree in the English curriculum. Abington School District v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 1572 n. 9, 10 L.Ed.2d 844 (1963). Grove has standing as a parent whose right to direct the religious training of her child is allegedly affected. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15; Abington School District, 374 U.S. at 224 n. 9, 83 S.Ct. at 1572 n. 9. Whether the Riddles as taxpayers may bring an establishment clause challenge is not simply answered. The Supreme Court has made it clear that a federal taxpayer has no standing to maintain a purely religious objection to federal expenditures. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 478, 102 S.Ct. 752, 762, 70 L.Ed.2d 700 (1982). But cf. K. Davis, 4 Administrative Law Treatise § 24:25 (2d ed. 1983). Similarly, a state taxpayer has been held not to have standing to assert a purely religious objection to Bible reading. Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). On the other hand, municipal taxpayers have traditionally been held to have standing to assert objections to municipal expenditures. See Massachusetts v. Mellon, 262 U.S. 447, 486, 43 S.Ct. 597, 600, 67 L.Ed. 1078 (1923). The First Circuit concluded, in a case subsequently reviewed on the merits by the Supreme Court, that Valley Forge did not change" }, { "docid": "13691208", "title": "", "text": "U.S. 203, 206 [68 S.Ct. 461, 462, 92 L.Ed. 649] (1948), citing Coleman v. Miller, 307 U.S. 433 [59 S.Ct. 972, 83 L.Ed. 1385] (1938). Cf. Frothingham v. Mellon, 262 U.S. 447, 486-87 [43 S.Ct. 597, 601, 67 L.Ed. 1078] (1923) (contrasting stake of federal taxpayer with that of municipal taxpayer for standing purposes). Thus, there is little doubt that Kriebel, Goodwin and Frazier, who pay taxes to Pawtucket, can challenge the City’s maintenance of the creche. 525 F.Supp. at 1162. Defendants argue on appeal that the district court’s analysis of standing is undercut by the Supreme Court’s subsequent decision in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). They claim that Valley Forge, severely limiting federal and state taxpayer standing, leaves no room for a distinction between federal and state taxpaying status on one hand and municipal taxpaying status on the other. We do not agree. At issue in Valley Forge was the transfer of a former military hospital, valued in excess of a half million dollars, to petitioner, a church-related college. The Department of Health, Education, and Welfare, pursuant to the terms of a statute enacted by Congress under the Property Clause of the Constitution, had declared the facility surplus real property and then permitted petitioner to acquire the property without making any financial payment because of a 100% “public benefit allowance” computed under the statute. Respondents, an organization dedicated to the separation of church and state, and several of its employees, brought suit to challenge the conveyance as violative of the Establishment Clause. The Supreme Court held that respondents lacked standing, within the meaning of Article III, as either taxpayers or citizens. In concluding that respondents were without standing as federal taxpayers, the Court distinguished its earlier decision in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). As an exception to the Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), general rule disfavoring federal taxpayer standing, Flast had held that a federal" }, { "docid": "12018348", "title": "", "text": "Flast to conclude that the taxpayers had standing as municipal taxpayers, but this reliance was misplaced. Flast pertains only to federal taxpayers and does not apply to municipal taxpayers. The standing of municipal taxpayers to challenge, as unconstitutional, expenditures by local governments remains settled law. The Supreme Court recently restated the distinction between standing of municipal taxpayers and standing of federal or state taxpayers. “The Froth-ingham Court noted with approval the standing of municipal residents to enjoin the ‘illegal use of the moneys of a municipal corporation,’ relying on ‘the peculiar relation of the corporate taxpayer to the corporation’ to distinguish such a case from the general bar on taxpayer suits.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 349, 126 S.Ct. 1854, 1865, 164 L.Ed.2d 589 (2006) (quoting Frothingham, 262 U.S. at 486-87, 43 S.Ct. at 601). The Court then rejected the Cuno plaintiffs’ attempts “to leverage the notion of municipal taxpayer standing beyond challenges to municipal action .... ” Id. Municipal taxpayers have standing to challenge unconstitutional expenditures if their interest is “direct and immediate.” Frothing-ham, 262 U.S. at 486, 43 S.Ct. at 601. A municipal taxpayer has standing to challenge a violation of the Establishment Clause by a municipality when the taxpayer is a resident who can establish that tax expenditures were used for the offensive practice. See Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 408 (5th Cir.1995); Bats v. Cobb County, GA., 495 F.Supp.2d 1311, 1317 (N.D.Ga.2007); Har vey v. Cobb County, Ga., 811 F.Supp. 669, 675 (N.D.Ga.1993). Our sister circuits have also recognized the standing of municipal taxpayers to challenge unconstitutional expenditures and have applied similar standards. See Doe, 70 F.3d at 408; Rocks v. City of Philadelphia, 868 F.2d 644, 648 (3d Cir.1989); Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1469-70 (7th Cir.1988); Hawley v. City of Cleveland, 773 F.2d 736, 741-2 (6th Cir.1985); Donnelly v. Lynch, 691 F.2d 1029, 1031-32 (1st Cir.1982), rev’d on other grounds, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). That standard applies here. The municipal taxpayers have established the “direct and immediate”" }, { "docid": "23101835", "title": "", "text": "83 S.Ct. at 1572 n. 9. Whether the Riddles as taxpayers may bring an establishment clause challenge is not simply answered. The Supreme Court has made it clear that a federal taxpayer has no standing to maintain a purely religious objection to federal expenditures. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 478, 102 S.Ct. 752, 762, 70 L.Ed.2d 700 (1982). But cf. K. Davis, 4 Administrative Law Treatise § 24:25 (2d ed. 1983). Similarly, a state taxpayer has been held not to have standing to assert a purely religious objection to Bible reading. Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). On the other hand, municipal taxpayers have traditionally been held to have standing to assert objections to municipal expenditures. See Massachusetts v. Mellon, 262 U.S. 447, 486, 43 S.Ct. 597, 600, 67 L.Ed. 1078 (1923). The First Circuit concluded, in a case subsequently reviewed on the merits by the Supreme Court, that Valley Forge did not change the rule that a municipal taxpayer could assert a religious objection to a city’s use of public resources, there the maintenance of a creche on city property. Donnelly v. Lynch, 691 F.2d 1029,1031 (1st Cir.1982), rev’d, — U.S. —, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). See also Conrad v. City and County of Denver, 656 P.2d 662, 669 (Colo. 1982); Fausto v. Diamond, 589 F.Supp. 451, 460 n. 5 (D.R.I. 1984). We need not resolve the question of the Riddles’ taxpayer standing here, however, because Grove has standing to pursue the establishment clause claims. We therefore may proceed to the merits. See, e.g., Watt v. Energy Action Educational Foundation, 454 U.S. 151,102 S.Ct. 205, 70 L.Ed.2d 309 (1981); Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Buckley v. Va-leo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). II. NOTICE OF CONSIDERATION OF MOTION FOR SUMMARY JUDGMENT Grove contends that the district judge provided insufficient notice of his intent to treat defendants’ pretrial motions as" }, { "docid": "9752060", "title": "", "text": "and American Jewish Congress, are inapposite because the question of standing was never litigated. This argument ignores the fact that \"[s]tanding is a threshold question in every federal case because if the litigants do not have standing to raise their claims the court is without authority to consider the merits of the action.” Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467 (7th Cir.1988). . The County requests that we take judicial notice that all courtrooms and offices of the Fourth Judicial Circuit Court, and offices of the State’s Attorney, have been moved to a new courthouse which opened in May, 1994. The County also requests that we take judicial notice that the Sheriff's Department has not been located in the old courthouse since 1990. The old courthouse, however, remains the seat of local government in the County and houses the offices of its elected officials. Doe and Roe will be exposed to the sign when they visit these offices, attend meetings of the County Board, or otherwise participate in their local government. The opening of the new courthouse therefore does not affect the standing of Doe and Roe. . The case-or-controversy requirement of Article III is satisfied if one plaintiff has standing to bring the suit. See Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981); Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264 n. 9, 97 S.Ct. 555, 563 n. 9, 50 L.Ed.2d 450 (1977); Buckley v. Valeo, 424 U.S. 1, 12, 96 S.Ct. 612, 631, 46 L.Ed.2d 659 (1976). The dismissed claims of other plaintiffs may affect issues of damages or equitable relief when the lawsuit is reinstated. Gonzales v. North Township of Lake County, Indiana, 4 F.3d 1412, 1416 (7th Cir. 1993). The district court addressed Stein’s allegations separately in its memorandum opinion granting the County's motion to dismiss, and both parties in their appellate briefs have addressed Stein’s allegations independently from those of Doe and Roe. We therefore consider Stein's standing to bring this action without regard to the" }, { "docid": "4861570", "title": "", "text": "of a different sort: Does American Atheists have standing to bring this claim? And, even if the group properly filed this lawsuit in the first instance, is this dispute still a live case or controversy given that the agency paid the approved reimbursement grants to each of the churches after the district court’s decision? A. The City argues that we need not, indeed cannot, decide the merits of this dispute because American Atheists premises standing on its members’ status as taxpayers and because taxpayer standing is a long-disfavored basis for enlisting the federal courts to resolve constitutional challenges to the validity of state or federal programs. See Frothingham v. Mellon, 262 U.S. 447, 487-89, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 343-46, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 476-82, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). As a general rule, a taxpayer concerned that government officials have misspent his tax dollars does not have a personal stake in the dispute — any more than any other taxpayer does — and thus lacks the “concrete and particularized” injury that Article III requires. Cuno, 547 U.S. at 344, 126 S.Ct. 1854 (internal quotation marks omitted). Yet that general rule gives way to an exception for municipal taxpayers. Since the Court first articulated the general prohibition against taxpayer standing in Frothingham, it has maintained that the “peculiar relation of the corporate taxpayer to the corporation” sets municipal taxpayers apart from their federal (and state) counterparts: Like a shareholder of a private corporation, a municipal taxpayer has an immediate interest in how the municipality spends resources that reflect his contributions. Frothingham, 262 U.S. at 487, 43 S.Ct. 597; see also Cuno, 547 U.S. at 349, 126 S.Ct. 1854; ASARCO, Inc. v. Kadish, 490 U.S. 605, 613, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (plurality opinion). In applying this distinction, we have held that, so long as the challenged government action involves the expenditure of municipal funds (or" }, { "docid": "23101836", "title": "", "text": "the rule that a municipal taxpayer could assert a religious objection to a city’s use of public resources, there the maintenance of a creche on city property. Donnelly v. Lynch, 691 F.2d 1029,1031 (1st Cir.1982), rev’d, — U.S. —, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). See also Conrad v. City and County of Denver, 656 P.2d 662, 669 (Colo. 1982); Fausto v. Diamond, 589 F.Supp. 451, 460 n. 5 (D.R.I. 1984). We need not resolve the question of the Riddles’ taxpayer standing here, however, because Grove has standing to pursue the establishment clause claims. We therefore may proceed to the merits. See, e.g., Watt v. Energy Action Educational Foundation, 454 U.S. 151,102 S.Ct. 205, 70 L.Ed.2d 309 (1981); Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Buckley v. Va-leo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). II. NOTICE OF CONSIDERATION OF MOTION FOR SUMMARY JUDGMENT Grove contends that the district judge provided insufficient notice of his intent to treat defendants’ pretrial motions as motions for summary judgment. She argues that she was denied an adequate opportunity to conduct discovery that would support her claims, in violation of due process. Whenever a district court looks beyond the pleadings in evaluating a Rule 12(b)(6) motion to dismiss, the motion must be treated as one for summary judgment under Rule 56. Fed.R.Civ.P. 12(b)(6); Portland Retail Druggists Association v. Kaiser Foundation Health Plan, 662 F.2d 641, 645 (9th Cir.1981). Before summary judgment may be entered, all parties must be given notice of the motion and an opportunity to respond. Portland Retail Druggists, 662 F.2d at 645. The opportunity to respond must include time for discovery necessary to develop facts justifying opposition to the motion. Id.; Fed.R.Civ.P. 56. In this circuit, notice is adequate if the party against whom judgment is entered is “fairly apprised” that the court will look beyond the pleadings, thereby transforming the motion to dismiss into a motion for summary judgment. Mayer v. Wedgewood, Neighborhood Coalition, 707 F.2d 1020, 1021 (9th Cir.1983) (per curiam) (citing Portland Retail Druggists, 662" }, { "docid": "1308876", "title": "", "text": "that the action violates “a specific constitutional limitation upon the exercise by Congress” of those powers. Id. 392 U.S. at 102-03, 88 S.Ct. at 1954. In Doremus v. Board of Education, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L.Ed. 475 (1952), the Court ruled that state taxpayers have standing only when bringing a “good-faith pocketbook action.” However, we see nothing in either case to convince us that Frothingham’s view of municipal taxpayer standing is not still good law. Other courts of appeals to consider the question have uniformly concluded that municipal taxpayers have standing to challenge allegedly unlawful municipal expenditures. See e.g., Cammack v. Waihee, 932 F.2d 765, 769-72 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 3027, 120 L.Ed.2d 898, 60 U.S.L.W. 3878 (June 29, 1992); Freedom From Religion Foundation, Inc. v. Zielke, 845 F.2d 1463, 1469-70 (7th Cir.1988) (stating the general rule but finding no standing since no municipal expenditures); Hawley v. City of Cleveland, 773 F.2d 736, 741-2 (6th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986); District of Columbia Common Cause v. District of Columbia, 858 F.2d 1, 3-8 (D.C.Cir.1988); Donnelly v. Lynch, 691 F.2d 1029, 1030-32 (1st Cir.1982), rev’d on other grounds, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). But cf. Rocks v. City of Philadelphia, 868 F.2d 644, 648 (3rd Cir.1989) (concluding that municipal taxpayer met Article III elements of standing but dismissing case on prudential grounds). Two district judges in this circuit have also found municipal taxpayer standing. Annunziato v. New Haven Bd. of Aldermen, 555 F.Supp. 427, 430-31 (D.Conn.1982); Ridgefield Women’s Political Caucus v. Fossi, 458 F.Supp. 117, 120 n. 3 (D.Conn.1978). Finally, we note that a four justice plurality of the Supreme Court has recently, in dicta, indicated that municipal taxpayer standing should be limited to those instances where the taxpayer can establish “that the ‘peculiar relation of the corporate taxpayer to the [municipal] corporation’ makes the taxpayer’s interest in the application of municipal revenues ‘direct and immediate.’” ASARCO, 490 U.S. at 613, 109 S.Ct. at 2043 (opinion of Kennedy," }, { "docid": "12018349", "title": "", "text": "immediate.” Frothing-ham, 262 U.S. at 486, 43 S.Ct. at 601. A municipal taxpayer has standing to challenge a violation of the Establishment Clause by a municipality when the taxpayer is a resident who can establish that tax expenditures were used for the offensive practice. See Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 408 (5th Cir.1995); Bats v. Cobb County, GA., 495 F.Supp.2d 1311, 1317 (N.D.Ga.2007); Har vey v. Cobb County, Ga., 811 F.Supp. 669, 675 (N.D.Ga.1993). Our sister circuits have also recognized the standing of municipal taxpayers to challenge unconstitutional expenditures and have applied similar standards. See Doe, 70 F.3d at 408; Rocks v. City of Philadelphia, 868 F.2d 644, 648 (3d Cir.1989); Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1469-70 (7th Cir.1988); Hawley v. City of Cleveland, 773 F.2d 736, 741-2 (6th Cir.1985); Donnelly v. Lynch, 691 F.2d 1029, 1031-32 (1st Cir.1982), rev’d on other grounds, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). That standard applies here. The municipal taxpayers have established the “direct and immediate” interest necessary to confer standing to challenge the constitutionality of the prayers of the Planning Commission. The record is clear, and the parties do not contest, that the taxpayers are residents and taxpayers of Cobb County, and the County expended public funds to select, invite, and thank invocational speakers for Planning Commission meetings during 2003-2004. We affirm the decision that the taxpayers have standing. 2. The Findings of the District Court About the Prayer Practice of the Planning Commission in 2003 and 2004 Were Not Clearly Erroneous. The district court did not err when it ruled that the prayers of the Planning Commission during 2003-2004 were unconstitutional because the selection procedures violated the “impermissible motive” standard of Marsh. In Marsh, the Court stated that the selection of a chaplain for 16 years was not a violation of the Establishment Clause “[a]bsent proof that the chaplain’s reappointment stemmed from an impermissible motive ....” 463 U.S. at 793, 103 S.Ct. at 3337. The district court interpreted this language to prohibit the selection of a speaker based on" }, { "docid": "12646617", "title": "", "text": "quotation marks omitted)). Established standing doctrine requires the party invoking the court’s authority to demonstrate a “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). A corollary is the rule that a plaintiffs payment of taxes is generally insufficient to establish standing to challenge the constitutionality of a government program or activity. Hein, 127 S.Ct. at 2562; DaimlerChrysler, 547 U.S. at 342-44, 126 S.Ct. 1854; Bowen v. Kendrick, 487 U.S. 589, 618-20, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 477-80, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 171-73, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Flast, 392 U.S. at 101-06, 88 S.Ct. 1942; Doremus v. Bd. of Educ., 342 U.S. 429, 433-34, 72 S.Ct. 394, 96 L.Ed. 475 (1952); Frothingham v. Mellon, 262 U.S. 447, 486-89, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). The reason: taxpayers have no direct, personal interest in the money in the Treasury simply by virtue of having paid taxes and therefore suffer no redressable injury when the federal government puts money to unconstitutional use. See Hein, 127 S.Ct. at 2559 (“In light of the size of the federal budget, it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm.”). The interest of individual taxpayers is shared in common with all other taxpayers and is therefore “too generalized and attenuated to support Article III standing.” Id. at 2563. Dating to Frothingham, decided with Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), the rule against taxpayer standing has resisted exceptions, for good reason: “[I]f every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function" }, { "docid": "10945803", "title": "", "text": "harm). In Flast v. Cohen, the Supreme Court held that, despite the general rule of Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) (barring federal taxpayer standing to challenge the constitutionality of a federal statute), a federal taxpayer will have alleged a sufficient economic injury to confer standing if he or she alleges that congressional action under the Taxing and Spending Clause, Art. I, § 8, is in derogation of those constitutional provisions which operate to restrict that legislative power. 392 U.S. at 106, 88 S.Ct. at 1955. A premier limitation on Art. I, § 8 power is the Establishment Clause of the First Amendment, which was designed as a specific bulwark against governmental use of taxing and spending powers to exalt one religion over another or to aid religion in general. Id. at 104, 88 S.Ct. at 1954; S. Cobb, Rise of Religious Liberty in America 490-99 (1902); 2 Writings of James Madison 183, 186 (Hunt ed. 1901). Valley Forge appears to have limited the Flast exception to challenges of the use of congressional power undertaken pursuant to the Taxing and Spending Clause. Valley Forge, 454 U.S. at 479-80, 102 S.Ct. at 762. Yet, as the First Circuit recently noted in Donnelly v. Lynch, supra, 691 F.2d at 1031, the Court gave no indication in Valley Forge that it intended to overrule the long line of cases establishing that, in contrast to federal taxpayers, municipal taxpayers have standing to challenge the allegedly unconstitutional use by a municipality of their tax dollars. Id. at 1031. The distinction, the First Circuit found, was made clear in Frothingham v. Mellon, 262 U.S. at 486-87, 43 S.Ct. at 600-01: “The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate.” Accordingly, in Donnelly v. Lynch, the First Circuit affirmed the district court’s finding that several residents and taxpayers of the City of Pawtucket had standing to contest, on Establishment Clause grounds, the city’s ownership and display of a life-sized" }, { "docid": "13691207", "title": "", "text": "FAIRCHILD, Senior Circuit Judge. The question is whether the City of Pawtucket’s ownership and use of a life-sized Christian nativity scene as part of a city-sponsored outdoor Christmas display situated on private property violates the Establishment Clause of the First Amendment. The district court held that it does and permanently enjoined the City from continuing the practice. We affirm that determination. The relevant facts and the arguments of the parties have been carefully and exhaustively detailed in Chief Judge Pettine’s opinion at the district court, and thus need not be repeated here. We turn directly to those issues raised on appeal which we think merit discussion. I. Standing The district court opinion stated: [T]his Court finds that the plaintiffs Kriebel, Goodwin and Frazier have standing to litigate this case. Even before Flast v. Cohen, 392 U.S. 83 [88 S.Ct. 1942, 20 L.Ed.2d 947] (1968), recognized the standing of federal taxpayers to challenge governmental expenditures on establishment clause grounds, municipal taxpayer standing had been permitted in this area. See e.g. McCollum v. Board of Education, 333 U.S. 203, 206 [68 S.Ct. 461, 462, 92 L.Ed. 649] (1948), citing Coleman v. Miller, 307 U.S. 433 [59 S.Ct. 972, 83 L.Ed. 1385] (1938). Cf. Frothingham v. Mellon, 262 U.S. 447, 486-87 [43 S.Ct. 597, 601, 67 L.Ed. 1078] (1923) (contrasting stake of federal taxpayer with that of municipal taxpayer for standing purposes). Thus, there is little doubt that Kriebel, Goodwin and Frazier, who pay taxes to Pawtucket, can challenge the City’s maintenance of the creche. 525 F.Supp. at 1162. Defendants argue on appeal that the district court’s analysis of standing is undercut by the Supreme Court’s subsequent decision in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). They claim that Valley Forge, severely limiting federal and state taxpayer standing, leaves no room for a distinction between federal and state taxpaying status on one hand and municipal taxpaying status on the other. We do not agree. At issue in Valley Forge was the transfer of a former military hospital," }, { "docid": "16571350", "title": "", "text": "pursuant to article IV, section 3, of the Constitution. In rejecting taxpayers’ claim of standing in Valley Forge, the Supreme Court ruled that taxpayers may claim standing under Flast only where an appropriation, as opposed to a property transfer or some other governmental act, is at issue. The Frothingham Court, however, noted a distinction between the requirements of taxpayer standing in suits by federal taxpayers and suits by municipal taxpayers. For present purposes, it is a crucial one. The Frothingham Court indicated an intent to leave undisturbed “the rule frequently stated by this Court, that resident taxpayers may sue to enjoin an illegal use of the moneys of a municipal corporation.” 262 U.S. at 486, 43 S.Ct. at 601. The Court observed: The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate. It is upheld by a large number of state cases and is the rule of this Court. Crampton v. Zabriskie, 101 U.S. [(11 Otto)] 601, 609 [25 L.Ed. 1070 (1879)]. Nevertheless, there are decisions to the contrary. See, for example, Miller v. Grandy, 13 Mich. 540, 550. The reasons which support the extension of the equitable remedy to a single taxpayer in such cases are based upon the peculiar relation of the corporate taxpayer to the corporation, which is not without some resemblance to that subsisting between stockholder and private corporation. Id. at 486-87, 43 S.Ct. at 601. The Supreme Court has adhered to this rule in more recent opinions. See Doremus v. Board of Education, 342 U.S. 429, 433-34, 72 S.Ct. 394, 396-97, 96 L.Ed. 475 (1952). In Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), the Supreme Court, without discussing standing, decided on the merits a suit by Pawtucket, Rhode Island taxpayers to enjoin municipal expenditures in connection with a Christmas creche. See also Gwinn Area Community Schools v. Michigan, 741 F.2d 840, 844 (6th Cir.1984) (“ ‘municipal taxpayer standing’ is different from ‘federal taxpayer standing.’ ”); Annunziato v. New Ha" }, { "docid": "14150342", "title": "", "text": "standing. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 758-60, 70 L.Ed.2d 700 (1982). Given this Court’s determination that .it has jurisdiction over the class’s claims, it may not be necessary to reach the standing issue, especially the prudential considerations. See Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981) (“Because we find California has standing, we do not consider the standing of the other plaintiffs.”); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 263, 97 S.Ct. 555, 562, 50 L.Ed.2d 450 (1977) (since Court has at least one plaintiff before it with standing to assert rights, no need to consider standing of other plaintiffs). Nevertheless, the court finds that the City and State meet the prudential standing requirements. The injuries claimed by the City and State are not only those suffered by third parties, nor is the injury a “generalized grievance.” See Valley Forge, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The State and City do claim injury to their citizens as the basis for parens patriae standing but in addition claim and have suffered injury to their own interests. Finally, the State’s and City’s interests must be arguably “within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970), quoted in Valley Forge, 454 U.S. 464, 475, 102 S.Ct. 752, 760, 70 L.Ed.2d 700. In determining whether a party falls within the “zone of interests” of a challenged statute, the court may look to the terms of the statute, its purpose and any relevant legislative history. Control Data Corp. v. Baldridge, 655 F.2d 283, 294 (D.C.Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981). “The challenging party need only show that it is an intended beneficiary" }, { "docid": "9655923", "title": "", "text": "169]. United States v. SCRAP, 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2416 n. 14, 37 L.Ed.2d 254 (1973). Thus, we find that plaintiffs Guerrero and Karnan have sufficiently demonstrated particular and personalized noneconomic injury to distinguish them from the general citizenry who may be as equally offended on a philosophical basis but who are not as specifically or perceptibly harmed, consistent with both the prior precedent defining noneconomic injuries in general and the decision in Valley Forge, to provide them with a “personal stake in the controversy.” Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Because we have determined that at least these two individuals have met the requirements of Article III, it is unnecessary for us to con sider the standing of the other plaintiffs in this action. See, eg., Watt v. Energy Action Education Foundation, 454 U.S. 151, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1978). III. ESTABLISHMENT CLAUSE The Establishment Clause of the First Amendment prohibits Congress from making any law “respecting the establishment of religion .. .. ” U.S. Const., Amend. I. This prohibition is applicable to the states through the Fourteenth Amendment. See, eg., Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). In interpreting the Establishment Clause, the Supreme Court has identified three tests to be applied to the challenged actions of a state: (1) Whether the action has a secular purpose; (2) Whether the “principal or primary effect” is one which neither “advances nor inhibits religion;” and (3) Whether the action fosters “ ‘an excessive government entanglement with religion.’ Walz [v. Tax Commissioners, 397 U.S. 664, 674 [90 S.Ct. 1409, 1414, 25 L.Ed.2d 697] (1970)].” Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971) (citations omitted). Moreover, it is clear that" }, { "docid": "11648654", "title": "", "text": "598). The Court in Doremus then harmonized its announced rule with a school district taxpayer case. See id. (discussing Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (assuming standing for school district taxpayer challenge of school board expenditures for transportation of parochial school students)). Subsequent cases have made clear that municipal taxpayer standing is only available when there is an expenditure of municipal funds challenged; courts in other circuits often have applied Doremus-Yike language to express this rule. See, e.g., District of Columbia Common Cause, 858 F.2d at 4 (explicitly applying the Doremus rule to municipal taxpayers); Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1469-70 (7th Cir.1988) (municipal taxpayers have standing to challenge the improper use of tax revenues but no standing where there has been no expenditure of city funds); Hawley v. City of Cleveland, 773 F.2d 736, 741-42 (6th Cir.1985) (municipal taxpayers may enjoin improper municipal expenditures), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986); Donnelly v. Lynch, 691 F.2d 1029, 1031 (1st Cir.1982) (“municipal taxpayers ... have standing to sue to challenge allegedly unconstitutional use of their tax dollars”), rev’d on other grounds, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). In fact, even those who have taken a dimmer view of the breadth of state taxpayer standing than this court have recognized that municipal taxpayer standing requires no more injury than an allegedly improper municipal expenditure. See, e.g., ASARCO, Inc. v. Kadish, 490 U.S. 605, 612, 109 S.Ct. 2037, 2042, 104 L.Ed.2d 696 (1989) (Kennedy, J.) (distinguishing the standing requirements for municipal taxpayers from those for state taxpayers, who must have a “direct injury” like that required of federal taxpayers) ; Taub v. Commonwealth of Kentucky, 842 F.2d 912, 917-19 (6th Cir.) (rejecting Hoohuli and restricting state taxpayer standing in non-establishment clause cases to that available to federal taxpayers, while leaving the municipal taxpayer standing rules unchanged), cert. denied, 488 U.S. 870, 109 S.Ct. 179, 102 L.Ed.2d 148 (1988); Donnelly, 691 F.2d at 1031 (the restrictive view of federal taxpayer" }, { "docid": "16571351", "title": "", "text": "Otto)] 601, 609 [25 L.Ed. 1070 (1879)]. Nevertheless, there are decisions to the contrary. See, for example, Miller v. Grandy, 13 Mich. 540, 550. The reasons which support the extension of the equitable remedy to a single taxpayer in such cases are based upon the peculiar relation of the corporate taxpayer to the corporation, which is not without some resemblance to that subsisting between stockholder and private corporation. Id. at 486-87, 43 S.Ct. at 601. The Supreme Court has adhered to this rule in more recent opinions. See Doremus v. Board of Education, 342 U.S. 429, 433-34, 72 S.Ct. 394, 396-97, 96 L.Ed. 475 (1952). In Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), the Supreme Court, without discussing standing, decided on the merits a suit by Pawtucket, Rhode Island taxpayers to enjoin municipal expenditures in connection with a Christmas creche. See also Gwinn Area Community Schools v. Michigan, 741 F.2d 840, 844 (6th Cir.1984) (“ ‘municipal taxpayer standing’ is different from ‘federal taxpayer standing.’ ”); Annunziato v. New Ha ven Board of Aldermen, 555 F.Supp. 427, 430-31 (D.Conn.1982) (Valley Forge does not restrict municipal taxpayer standing). Finally, we note that the Supreme Court recently affirmed the holding of this court in Americans United for Separation of Church and State v. School District of Grand Rapids, 718 F.2d 1389 (6th Cir.1983), that state taxpayers have standing to challenge public aid to religious schools. Grand Rapids School District v. Ball, — U.S.-,-n. 5, 105 S.Ct. 3216, 3221 n. 5, 87 L.Ed.2d 267 (1985). While the case is not precisely on point, it is added support for our view that the Supreme Court continues to allow suits by nonfederal taxpayers to enjoin unconstitutional acts affecting public finances. It thus appears that a question of material fact exists as to whether the rental of the space for the chapel to the diocese at the agreed-upon price could harm Cleveland’s fisc. In addition, as we noted supra, appellants have alleged a non-economic basis for standing. Taking appellants allegations as true, as we must at this stage of the proceeding," }, { "docid": "7178840", "title": "", "text": "facts, and it has refused to extend Flast to exercises of executive power (see Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 228, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974)), or of congressional power under the Property Clause (see Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 480, 102 S.Ct. 752, 762-63, 70 L.Ed.2d 700 (1982)). See generally Kurtz v. Baker, 829 F.2d 1133, 1139-40 (D.C.Cir.1987) (surveying law of federal taxpayer standing), cert. denied, — U.S. -, 108 S.Ct. 2831, 100 L.Ed.2d 931 (1988). Schlesinger, Valley Forge, and similar cases must be understood as limiting the Flast exception to the Court’s general rule against federal taxpayer standing. They do not limit municipal taxpayer standing which, as we know from Frothingham, rests on an entirely different foundation. See, e.g., Hawley v. City of Cleveland, 773 F.2d 736, 741-42 (6th Cir.1985) (Valley Forge does not overrule recognition of municipal taxpayer standing in Frothingham; “Supreme Court continues to allow suits by nonfederal taxpayers to enjoin unconstitutional acts affecting public finances”), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986); Donnelly v. Lynch, 691 F.2d 1029, 1031 (1st Cir.1982) (no indication that Valley Forge intended to overrule cases establishing that municipal taxpayers have standing), rev’d on other grounds, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). 2. Elements of Municipal Taxpayer Standing a. Pocketbook Injury A taxpayer’s challenge to a state expenditure establishes a case or controversy “when it is a good-faith pocketbook action.” Doremus v. Board of Education, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L.Ed. 475 (1952). Doremus involved a challenge by state taxpayers to Bible reading in public schools. The Court recognized the distinction between municipal and federal taxpayer standing, but refused to accord standing to a state taxpayer absent evidence of “some direct injury,” id. (quoting Frothingham, 262 U.S. at 488, 43 S.Ct. at 601), i.e., a “measurable appropriation” of tax funds. Id. (discussing Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, (1947)). As" } ]

[ { "docid": "21581738", "title": "", "text": "judicata from again raising them in the instant action. In a Report and Recommendation filed December 14, 1987, David D. Noce, United States Magistrate, recommended that summary judgment in favor of appellees be granted. In an order entered February 10, 1988, George F. Gunn, Jr., District Judge, adopted the magistrate’s report and recommendation and dismissed appellant’s second action. On appeal, appellant argues that summary judgment on the ground of res judicata was improper since (1) two different events and causes of action were involved in the prior and instant litigation, and (2) there is a disputed issue of material fact as to what issues were concluded in the prior negotiated settlement agreement. Appellees argue that summary judgment was proper since the claims raised in the instant action either were or could have been raised in the first action. For the reasons stated below, we affirm the dismissal of appellant’s second action on the ground that it is barred by res judicata. II. The doctrine of res judicata bars relit-igation of a claim if three requirements are met: (a) the prior judgment was rendered by a court of competent jurisdiction; (b) the prior judgment was a final judgment on the merits; and (c) the same cause of action and the same parties or their privies were involved in both cases. Headley v. Bacon, 828 F.2d 1272, 1274 (8th Cir.1987). The parties do not dispute that requirements (a) and (b) have been satisfied. The sole question is whether, for res judicata purposes, the two actions involved the same cause of action and the same parties or their privies. We have adopted the position of the Restatement (Second) of Judgments in determining whether two separately asserted claims arise from the same cause of action for res judicata purposes: “ ‘When a valid and final judgment rendered in an action extinguishes the plaintiff’s claim pursuant to the rules of merger or bar ... the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of" } ]

[ { "docid": "6623953", "title": "", "text": "application of the provisions of § 364 would result in a lien amount of zero. Norwest, of course, vigorously disputes this characterization. We do not reach the merits of this disagreement, as we affirm the judgment of the court below on two grounds. First, the Trustee overlooks the fact that notice was given and a hearing on the validity of the Third Stipulation was held, not once, but twice. The objections of all interested parties were finally heard at the June 13, 1989, hearing. Thus, the requirements of due process were met. The bankruptcy court, while retroactively validating Nor-west’s lien in the post-petition collateral for the amount of all cash collateral used by Trout, regardless of when used, correctly applied the language of the Third Stipulation and was well within its discretion in doing so. Second, and most important, res judicata bars the relitigation of those issues which were actually litigated, as well as those issues which could have been litigated, in an earlier proceeding. Lane v. Peterson, 899 F.2d 737 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 74, 112 L.Ed.2d 48 (1990). The validity of the Third Stipulation was litigated repeatedly, and the issues of due process and the application of § 364 could have been litigated throughout those proceedings. The matter has been conclusively settled. Under Eighth Circuit law, res judicata bars relitigation of a claim if: (1) the prior judgment was rendered by a court of competent jurisdiction; (2) the prior judgment was final judgment on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases. Lane at 742 (citing Murphy v. Jones, 877 F.2d 682, 684 (8th Cir.1989)). The first two requirements are indisputably met in this case. Final judgment on the merits of the Third Stipulation was entered by the bankruptcy court on June 22, 1989, and subsequently affirmed by the district court on November 1, 1989. The Trustee’s reliance in subsequent litigation on different substantive law and new legal theories does not preclude the operation of res judicata. One of the" }, { "docid": "6623952", "title": "", "text": "entity with an interest in the cash collateral. The bankruptcy court did not err in approving the First Stipulation ex parte. Although equally unnecessary in the case of the Ongoing Stipulation, notice to creditors was provided and a hearing was held, resulting in court approval. The court’s ex parte extension of that stipulation did not require any additional due process precautions. The bankruptcy court did not err in its approval of the Ongoing Stipulation. The Trustee has characterized the Third Stipulation as an agreement by Norwest to advance new, secured credit in return for a new lien on previously unencumbered assets. The use of unencumbered assets to secure a post-petition lender, increasing the liabilities of the estate, is a transaction which may affect the interest of creditors and, therefore, notice and hearing is required pursuant to 11 U.S.C. § 364(c). The Trustee’s belated attempt to bring the Third Stipulation within the strictures of § 364 is for the express purpose of redefining the amount of the lien available to Norwest. Indeed, the Trustee argues that application of the provisions of § 364 would result in a lien amount of zero. Norwest, of course, vigorously disputes this characterization. We do not reach the merits of this disagreement, as we affirm the judgment of the court below on two grounds. First, the Trustee overlooks the fact that notice was given and a hearing on the validity of the Third Stipulation was held, not once, but twice. The objections of all interested parties were finally heard at the June 13, 1989, hearing. Thus, the requirements of due process were met. The bankruptcy court, while retroactively validating Nor-west’s lien in the post-petition collateral for the amount of all cash collateral used by Trout, regardless of when used, correctly applied the language of the Third Stipulation and was well within its discretion in doing so. Second, and most important, res judicata bars the relitigation of those issues which were actually litigated, as well as those issues which could have been litigated, in an earlier proceeding. Lane v. Peterson, 899 F.2d 737 (8th Cir.1990), cert. denied," }, { "docid": "7288127", "title": "", "text": "proof of claim that Knox presented in her Objection. Knox counters that claims in the Complaint are different from valuation issues earlier litigated because Knox now seeks redress for SAC’s allegedly intentionally and systematically submitting inflated secured claims. The doctrine of res judicata bars relitigation of claims that were asserted or could have been asserted in an earlier action. D & K Properties Crystal Lake v. Mutual Life Ins. Co. of New York, 112 F.3d 257, 259 (7th Cir.1997). “Res judicata reflects fundamental public policy that there be an end to litigation, which is particularly strong in the bankruptcy context.” Hawxhurst v. Pettibone Corp., 40 F.3d 175, 180 (7th Cir.1994). Three elements must be present for res judicata to apply: (1) a final judgment on the merits in a prior action; (2) an identity of the cause of action in both the prior and subsequent suits; and (3) an identity of parties or privies in these suits. Id. Knox and SAC are parties to the objection and are parties to the present adversary proceeding. Moreover, the Order which required the bifurcation of the claim into secured and unsecured components and reduced the secured component to the value of the collateral was a final judgment on the merits of that issue. See Matter of Wade, 991 F.2d 402, 406 (7th Cir.), cert. denied, 510 U.S. 870, 114 S.Ct. 195, 126 L.Ed.2d 153 (1993) (an order allowing or denying a claim is final and appealable); Bank of Lafayette v. Baudoin (In re Baudoin), 981 F.2d 736, 742 (5th Cir.1993) (an order allowing a claim is a final judgment for res judicata purposes). Thus, two elements are clearly present. Only one element is at issue: Whether there was an identity of the cause of action. Res judicata “requires litigants to join in a single suit all legal and remedial theories that concern a single transaction.” Perkins v. Board of Trustees of the University of Illinois, 116 F.3d 235, 236 (7th Cir.1997). For purposes of res judicata, two claims are so closely related that they constitute the same transaction if they are “based on" }, { "docid": "9496457", "title": "", "text": "the face of the complaint to the ones Judge Parker dealt with in Cameron I. The Cameron II complaint adds factual allegations and defendants, and characterizes causes of action differently. Defendants here argue, nonetheless, that Plaintiffs additional claims are precluded by the doctrine of res judi-cata, or claim preclusion. Res judicata “applies to preclude later litigation if the earlier decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same [claim, or] cause of action.” In re Teltronics Services, Inc., 762 F.2d 185, 190 (2d Cir.1985). Res judicata operates so that “ ‘[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.’ ” Saud v. Bank of New York, 929 F.2d 916, 918-19 (2d Cir.1991) (quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981)). It applies “not only as to what was pleaded, but also as to what could have been pleaded.” Teltronics Services, Inc. 762 F.2d at 193. Res judicata bars cases that arise from the same “operative nucleus of fact.” Olmstead v. Amoco Oil Company, 725 F.2d 627, 632 (11th Cir.1984). “New legal theories do not amount to a new cause of action so as to defeat the application of the principle of res judicata. ” Teltronics Services, Inc., 762 F.2d at 193. “To ascertain whether two actions spring from the same ‘transaction’ or ‘claim,’ we look to whether the underlying facts are ‘related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations....'\" Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir.1997) (quoting Restatement (Second) of Judgments § 24(2) (1982)). There is no dispute that the dismissal of Cameron I constituted a final judgment on the merits by a court of competent jurisdiction. Plaintiff argues, however, that the claims or causes" }, { "docid": "613872", "title": "", "text": "the dual preclusionary doctrines of res judica-ta, also known as claim preclusion, and collateral estoppel, also known as issue preclusion. The defining characteristics of these doctrines are described as follows: The doctrines of res judicata and collateral estoppel are ... two different con cepts. A final judgment on the merits in a prior action will conclude the parties and their privies under the doctrine of res judicata in a second action based on the same claim as to issues actually litigated and as to issues which might have been litigated in the first action. Under the doctrine of collateral estoppel, on the other hand, the second action is based upon a different claim and the judgment in the first action precludes relitigation of only those issues “actually and necessarily litigated and determined in the first suit.” Liberty Mut. Ins. Co. v. Employers Ins. of Wausau, 284 S.C. 234, 325 S.E.2d 566, 568 (1985) (citing Beall v. Doe, 281 S.C. 363, 315 S.E.2d 186, 189-90 n.l (S.C.Ct.App.1984)). “Expressed differently, ‘res judi-cata ’ bars relitigation of the same cause of action while ‘collateral estoppel’ bars reliti-gation of the same facts or issues necessarily determined in the former proceeding.” Id. Of these doctrines, it is collateral estoppel that applies to determine whether specific facts or issues determined in a prior state court judgment bar relitigation of those same facts or issues in a separate bankruptcy dischargeability proceeding. See Grogan v. Garner, 498 U.S. 279, 284 n. 1, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (noting that it is collateral estoppel principles that apply in discharge exception proceedings pursuant to § 523(a)); Sartin v. Macik, 535 F.3d 284, 287 (4th Cir.2008); Samson v. Ward (In re Ward), 194 B.R. 53, 56 (Bankr.D.S.C.1995). The Supreme Court of South Carolina adopts the general rule of collateral estoppel set forth in the Restatement (Second) of Judgments § 27 (1982) which states: When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the" }, { "docid": "21092705", "title": "", "text": "the adversary proceeding, and that res judicata prevented Lang from relitigating the claim by motion. Lang appeals. II. DISCUSSION The binding effect of a former adjudication, often generically termed res judicata, can take one of two forms. Claim preclusion (traditionally termed res judicata or “merger and bar”) “ ‘bars relitigation of the same claim between parties or their privies where a final judgment has been rendered upon the merits by a court of competent jurisdiction.’ ” Plough v. West Des Moines Community Sch. Dist., 70 F.3d 512, 517 (8th Cir.1995) (quoting Smith v. Updegraff, 744 F.2d 1354, 1362 (8th Cir.1984)). Issue preclusion (or “collateral estoppel”) applies to legal or factual issues “actually and necessarily determined,” with such a determination becoming “conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). The principles of res judicata generally apply to bankruptcy proceedings. Katchen v. Landy, 382 U.S. 323, 334, 86 S.Ct. 467, 475, 15 L.Ed.2d 391 (1966). In this case the question is one of claim preclusion since the administrative expense claim Lang brought by motion was identical to Lang’s cross-claim in the prior adversary proceeding. Claim preclusion will bar a subsequent suit when: “(1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involved the same cause of action; and (4) both suits involved the same parties or their privies.” Lovell v. Mixon, 719 F.2d 1373, 1376 (8th Cir.1983). Furthermore, the party against whom res judicata is asserted must have had a full and fair opportunity to litigate the matter in the proceeding that is to be given preclusive effect. Plough, 70 F.3d at 517. There is no dispute that the two proceedings at issue in this case involved the same parties and the same cause of action. Therefore, we need only determine: (1) whether the bankruptcy court had jurisdiction to decide the administrative expense claim in the adversary proceeding; (2) whether the" }, { "docid": "23643363", "title": "", "text": "estoppel and res judi-cata. In order to properly analyze these two similar doctrines we must first recognize the critical differences between them, as described by the Eighth Circuit Court of Appeals in Lovell v. Mixon. Under the doctrine of collateral estop-pel, four criteria must be met before a determination is conclusive in a subsequent proceeding: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (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 judgment. In re Piper Aircraft Distribution Anti-trust Litigation. 551 F.2d 213 (8th Cir.1977). The doctrine of res judicata bars a later suit when (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involved the same cause of action; and (4) both suits involved the same parties or their privies. Ward v. Arkansas State Police, 653 F.2d 346 (8th Cir.1981). Thus, the application of collateral estop-pel or issue preclusion is limited to those matters previously at issue which were directly and necessarily adjudicated. Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). In contrast, res judicata or claim preclusion bars the relitigation of issues which were actually litigated or which could have been litigated in the first suit. Federated Department Stores v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). However, both doctrines are applied only when the party against whom the early decision is being asserted had a “full and fair opportunity” to litigate the issue in question. Kremer v. Chemical, 456 U.S. 461, 481 n. 22, 102 S.Ct. 1883, 1897 n. 22, 72 L.Ed.2d 262 (1982). When we apply these general principles to the facts before us, it is clear that neither doctrine bars this court’s consideration of the dischargeability issue. Under the leading Supreme Court case of Brown v." }, { "docid": "3640650", "title": "", "text": "83-85, 104 S.Ct. 892. Thus, the effect of the New Hampshire court’s final judgment on Plaintiffs’ federal action is determined by-applying New Hampshire’s res judicata law. In New Hampshire, “the essence of the doctrine of res judicata is that a final judgment by a court of competent jurisdiction is conclusive upon the parties in a subsequent litigation involving the same cause of action.” In re Juvenile, 888 A.2d 422, 425 (N.H.2005). The doctrine precludes litigation in a later case of matters actually litigated, and matters that could have been litigated, in the earlier action. See Brzica v. Trustees of Dartmouth Coll., 147 N.H. 443, 791 A.2d 990, 999 (2002). For res judicata to apply, three elements must be satisfied: (1) the parties must be the same or in privity with one another; (2) the same cause of action must be before the court in both instances; and (3) a final judgment on the merits must have been rendered in the first action. See id. “Cause of action” is broadly defined to mean “the right to recover, regardless of the theory of recovery.” McNair v. McNair, 151 N.H. 343, 856 A.2d 5, 16 (2004). At first blush, this case appears to fall squarely within New Hampshire’s res judi-cata rules. The parties to the federal action and the state actions were identical. The same cause of action was before the federal court as was before the state court because both suits sought compensation for harm caused by the Town’s wrongful denial of the permits. And the New Hampshire court entered final judgments on the merits of Plaintiffs’ state-court actions. There is, however, a complication. In 1985, the United States Supreme Court held that a takings claim under the Fifth Amendment is not ripe until the plaintiff has sought compensation through available state procedures. See Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194-95, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); see also Deniz v. Guaynabo, 285 F.3d 142, 146 (1st Cir.2002). In 1989, building on Williamson County, the New Hampshire Supreme Court held that federal takings and related federal" }, { "docid": "23502019", "title": "", "text": "action. See In re Anderberg-Lund Printing Co., 109 F.3d 1343, 1346 (8th Cir.1997); Kulinski v. Medtronic Bio-Medicus, Inc., 112 F.3d 368, 372 (8th Cir.1997) (subsequent history omitted). “Furthermore, the party against whom res judicata is asserted must have had a full and fair opportunity to litigate the matter in the proceeding that is to be given preclusive effect.” In re Anderberg-Lund, 109 F.3d at 1346. Regarding the “final judgment on the merits” element of claim preclusion, we have stated that a prior dismissal premised upon subject matter jurisdiction should preclude relitigation of the same [jurisdiction] issue but not a second suit on the same claim even if arising out of the identical set of facts.... [Wjhere the second suit presents new theories of relief, admittedly based upon the same operative facts as alleged in the first action, it is not precluded because the first decision was not on the merits of the substantive claim. Kulinski, 112 F.3d at 373 (quoting McCarney v. Ford Motor Co., 657 F.2d 230, 233-34 (8th Cir.1981)) (citations omitted). In Arkansas Peace III (the primary prior judgment upon which defendants rely for their claim preclusion argument), we reversed the judgment for lack of subject matter jurisdiction. 999 F.2d at 1218. A subsequent action brought in state court and removed to federal court was similarly- dismissed on jurisdictional grounds. See Arkansas Peace IV, Amended Order at 5-6. Regarding the “same claims or causes of action” element of claim preclusion, we have stated that whether a second lawsuit is pre-' eluded turns on whether its claims arise out of the “same nucleus of operative facts as the prior claim.” Gurley, 43 F.3d at 1195 (quoting Lane v. Peterson, 899 F.2d 737, 742 (8th Cir.1990)). In Gurley, we held that the EPA’s CERCLA claim brought against an oil reclamation company was barred by its previous claim brought under the Cléan Water Act. See id. at 1195-97. We .recognized that in conducting a claim preclusion analysis, “[t]he legal theories of the two claims are relatively insignificant because ‘a litigant cannot attempt to relitigate the same claim under a different legal" }, { "docid": "18881472", "title": "", "text": "and those in Lane I is that the defendants wrongfully acquired and sold the Lane Companies and should now be made to disgorge the proceeds. Concededly, some of the claims asserted here would involve some evidence that perhaps was not relevant in Lane 1. For example, the district court noted that the Lanes’ instant claim under 11 U.S.C. § 1127(b) would require “proof not only that defendants deceived plaintiffs in various ways, but also that they wrongfully failed to notify the bankruptcy court of such activities — an entirely different factual issue requiring different proof [from that involved in Lane /].” Lane v. Peterson, No. 88-2145, slip op. at 22-23 (W.D. Ark. Dec. 23, 1980). We recognize this; what we take issue with is the conclusion that where the second action would involve proof of some facts that were not operative in the prior suit res judicata necessarily does not apply. The Restatement (Second)^ “transactional” approach to res judi-cata contemplates that there may be some variance in the proof required for claims that are nonetheless the “same claim” for res judicata purposes. The operative question in each case is whether the claims arise out of the same nucleus of facts. As stated in the Restatement (Second) of Judgments, [t]he present trend is to see claim in factual terms and to make it coterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; regardless of the number of primary rights that may have been invaded; and regardless of the variations in the evidence needed to support the theories or rights. The transaction is the basis of the litigative unit or entity which may not be split. Restatement (Second) of Judgments § 24, comment a at 197 (1980). Similarly, the Lanes’ reliance in this suit on different substantive law and new legal theories does not preclude the operation of res judicata. One of the merits of the Restatement (Second)’s approach is that it prevents parties from suing on a claim that is in essence the" }, { "docid": "18536029", "title": "", "text": "embodies in the related doctrines of collateral estoppel and res judi-cata, is that a “right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction ... cannot be disputed in a subsequent suit between the same parties or their privies ...” Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Application of both doctrines is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions. To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions. Montana v. United States, 440 U.S. 147, 153-154, 99 S.Ct. 970, 973-974, 59 L.Ed.2d 210 (1979) (citations and footnote omitted). The Court of Appeals for the Seventh Circuit in the case of Gray v. Lacke, 885 F.2d 399 (7th Cir.1989), stated as follows: Under the doctrine of res judicata (claim preclusion), a final judgment on the merits of an action bars further claims by the parties or their privies based on that same action. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Beard v. O’Neal, 728 F.2d 894, 896 (7th Cir.), cert. denied, 469 U.S. 825, 105 S.Ct. 104, 83 L.Ed.2d 48 (1984). Moreover, res judica-ta bars not only those issues that the parties actually litigated, but also any issue which the parties could have raised in the prior action. Whitley v. Seibel, 676 F.2d 245, 2149 n. 7 (7th Cir.), cert. denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982); Harper Plastics, Inc. v. AMOCO Chems. Corp., 657 F.2d 939, 945 (7th" }, { "docid": "18881464", "title": "", "text": "plan that required bankruptcy court approval. The district court ruled that the stock transfer agreement did not constitute a modification. Lane v. Peterson, No. 88-2145, slip op. at 8 (W.D.Ark. June 20, 1989). We affirm the district court’s dismissal of all claims against the defendants, although, in some respects, upon grounds different from those relied upon by the district court. II. DISCUSSION A. Preclusive Effect of Lane I We must first determine the extent to which the claims raised in this case are barred by this court’s prior decision in Lane I. We examine two preclusion principles: res judicata (claim preclusion) and collateral estoppel (issue preclusion). “Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979). Thus, res judicata precludes the relitigation of a claim on grounds that were raised or could have been raised in the prior action. Poe v. John Deere Co., 695 F.2d 1103, 1105 (8th Cir.1982). “Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action.” Parklane Hosiery, 439 U.S. at 326 n. 5, 99 S.Ct. at 649 n. 5 (citations omitted). Originally, collateral estoppel was limited by the principle of mutuality, which provided that “neither party could use a prior judgment as an estoppel against the other unless both parties were bound by the judgment.” Id. at 326-27, 99 S.Ct. at 649-50 (footnote omitted). However, the mutuality requirement under federal law has been abandoned. Now, a party may rely on collateral estoppel even though he or she is not bound by the prior judgment if the party against whom it is used had a full and fair opportunity and incentive to litigate the issue in the prior action." }, { "docid": "18881474", "title": "", "text": "same as a previously litigated claim but is dressed up to look different. Thus, where a plaintiff fashions a new theory of recovery or cites a new body of law that was arguably violated by a defendant’s conduct, res judicata will still bar the second claim if it is based on the same nucleus of operative facts as the pri- or claim. See Mills v. Des Arc Convalescent Home, 872 F.2d 823, 826-27 (8th Cir. 1989) (prior Title VII claim barred § 1981 claim); Chester v. St. Louis Homing Authority, 873 F.2d 207, 208-09 (8th Cir.1989) (procedural due process claim barred later claim for Title VII and equal protection violations); Hufsmith, 817 F.2d at 460-61 (prior Sherman Act claim barred tortious interference with contract claim); Headley v. Bacon, 828 F.2d 1272, 1275 (8th Cir.1987) (prior Title VII claim and later claims based on 42 U.S.C. §§ 1982, 1983, and 1985 were the same for res judicata purposes); Roach v. Teamsters Local Union No. 688, 595 F.2d 446, 449-50 (8th Cir.1979) (claim against union for breach of duty of fair representation barred later action for violation of free speech and assembly rights). See also Restatement (Second) of Judgments § 24 comments a, b, & c (1981). In sum, we hold that the claims in this case arise out of the same nucleus of operative facts involved in Lane I. Thus, the doctrine of res judicata bars the Lanes' claims against Peterson and Covell, the two defendants herein who were parties in Lane I. However, this holding does not dispose of the claims against Sullivan because he was neither a party nor privy to a party in Lane I. We thus turn to those claims. B. Claims against Sullivan The Lanes’ claims against Sullivan do not warrant extended discussion. The Lanes voluntarily dismissed their § 10(b) securities fraud claim against Sullivan after the district court held that those claims were meritless as against Peterson and Covell. The Lanes have apparently abandoned their § 17(a) securities fraud claim against Sullivan. In any event, that claim is without merit because, as the district court" }, { "docid": "6623954", "title": "", "text": "— U.S. -, 111 S.Ct. 74, 112 L.Ed.2d 48 (1990). The validity of the Third Stipulation was litigated repeatedly, and the issues of due process and the application of § 364 could have been litigated throughout those proceedings. The matter has been conclusively settled. Under Eighth Circuit law, res judicata bars relitigation of a claim if: (1) the prior judgment was rendered by a court of competent jurisdiction; (2) the prior judgment was final judgment on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases. Lane at 742 (citing Murphy v. Jones, 877 F.2d 682, 684 (8th Cir.1989)). The first two requirements are indisputably met in this case. Final judgment on the merits of the Third Stipulation was entered by the bankruptcy court on June 22, 1989, and subsequently affirmed by the district court on November 1, 1989. The Trustee’s reliance in subsequent litigation on different substantive law and new legal theories does not preclude the operation of res judicata. One of the merits of the Restatement (Second)’s approach is that it prevents parties from suing on a claim that is in essence the same as a previously litigated claim but is dressed up to look different. Thus, where a plaintiff fashions a new theory of recovery or cites a new body of law that was arguably violated by a defendant’s conduct, res judicata will still bar the second claim if it is based on the same nucleus of operative facts as the prior claim. Lane at 744. Thus, the doctrine of res judicata bars the Trustee’s claims against Norwest which were raised after the June 22, 1989, holding of the bankruptcy court. The bankruptcy court and the district court were correct in disallowing the arguments regarding the Third Stipulation. III. The additional arguments raised by the Trustee do not merit prolonged discussion. The finding of the lower courts, that all three of the stipulations were for the purpose of granting Norwest adequate protection, is not clearly erroneous. The record supports the initial factual finding of the bankruptcy" }, { "docid": "3844501", "title": "", "text": "as the “relitigation” exception. “The relitigation exception was designed to permit a federal court to prevent state litigation of an issue that previously was presented to and decided by the federal court. It is founded in the well-recognized concepts of res judicata and collateral estoppel.” Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988). There are two related doctrines of preclusion: (1) claim preclusion, commonly referred to as res judicata, and (2) issue preclusion, known as collateral estoppel. See Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). In order to determine if the relitigation exception to the Anti-Injunction Act is applicable to preclude litigation of a claim in state court under the doctrine of res judicata, this court applies a four-part test. “First, the parties in a later action must be identical to (or at least in privity with) the parties in a prior action. Second, the judgment in the prior action must have been rendered by a court of competent jurisdiction. Third, the prior action must have concluded with a final judgment on the merits. Fourth, the same claim or cause of action must be involved in both suits.” N.Y. Life Ins. Co. v. Gillispie, 203 F.3d 384, 387 (5th Cir.2000) (quoting United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir.1994)). The doctrine of collateral estoppel applies to prevent issues of ultimate fact from being relitigated between the same parties in a future lawsuit if those issues have once been determined by a valid and final judgment. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Restatement (Seoond) of JudgmeNts § 27 (1982) (“When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between parties, whether on the same or a different claim.”) (cited in Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)). While complete identity of all" }, { "docid": "4604153", "title": "", "text": "they were incorporated in Defendant’s Final Account. Likewise, this suit and the prior Bankruptcy Court litigation involve the same “transaction or occurrence”, namely, the ownership and care of the herd of dairy cows originally “leased” by Taylor to Noakes. According to Plaintiffs’ recent deposition testimony, their cause of action accrued by August 29, 1984. This was while the litigation between Defendant and Taylor over the ownership of the cattle was pending and before Searles’ and Jackson’s Petition had even been filed. Plaintiffs could have joined a claim for tort damages within the prior litigation; their failure to do so does not prevent the Orders being res judicata as to those claims. “As a general principle, then, the plaintiff must assert in his first suit all the legal theories he wishes to assert, and his failure to assert does not deprive the judgment of its effect as res judicata. So, too, with the demand for relief. The plaintiff must seek in his first suit all the relief to which he is entitled, and the judgment in that suit bars a second suit seeking different or additional relief.” Moore’s Federal Practice, supra, ¶ 0.410[1], Issue preclusion, or res judicata, has been summarized in Del Mar Avionics v. Quinton Instruments Co., 645 F.2d 832, 834 (9th Cir.1981), citing Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979): “A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judi-cata, is that a ‘right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction ... cannot be disputed in a subsequent suit between the same parties or their privies ... ’ [citation omitted]. Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action, [citation omitted]. Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” In" }, { "docid": "18881467", "title": "", "text": "claims that the defendants breached their fiduciary duties were barred by collateral estoppel. The district court did not hold that any of the Lanes’ claims were barred by the doctrine of res judicata. We believe that the preclusive effect of Lane I is broader than recognized by the district court. We may affirm a judgment on any ground supported by the record even if not relied upon by the district court, Nichols v. City of St. Louis, 837 F.2d 833, 835 n. 2 (8th Cir.1988); Brown v. St. Louis Police Dept., 691 F.2d 393, 396 (8th Cir.1982), cert. denied, 461 U.S. 908, 103 S.Ct. 1882, 76 L.Ed.2d 812 (1983), and we do so in this case. We hold that all of the claims asserted against Peterson and Covell (the two panel members) are based on the same cause of action that was asserted in Lane I and are thus barred by res judicata. Res judicata bars relitigation of a claim if: (1) the prior judgment was rendered by a court of competent jurisdiction; (2) the prior judgment was a final judgment on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases. Murphy v. Jones, 877 F.2d 682, 684 (8th Cir.1989). Neither party disputes that the first two requirements are met in this case. The Lanes claim, and the district court apparently believed, that the third requirement is not met because this case involves claims different from those asserted in Lane I. We believe otherwise. This circuit has adopted the position of the Restatement (Second) of Judgments in determining whether two causes of action are the same for res judicata purposes. Generally, under this approach a claim is barred by res judicata if it arises out of the same nucleus of operative facts as the pri- or claim. See Murphy, 877 F.2d at 684-85; Hufsmith v. Weaver, 817 F.2d 455, 461 (8th Cir.1987); Poe, 695 F.2d at 1105-06. The Restatement (Second) of Judgments provides: (1) When a valid and final judgment rendered in an action extinguishes the plaintiff’s claim" }, { "docid": "6623955", "title": "", "text": "merits of the Restatement (Second)’s approach is that it prevents parties from suing on a claim that is in essence the same as a previously litigated claim but is dressed up to look different. Thus, where a plaintiff fashions a new theory of recovery or cites a new body of law that was arguably violated by a defendant’s conduct, res judicata will still bar the second claim if it is based on the same nucleus of operative facts as the prior claim. Lane at 744. Thus, the doctrine of res judicata bars the Trustee’s claims against Norwest which were raised after the June 22, 1989, holding of the bankruptcy court. The bankruptcy court and the district court were correct in disallowing the arguments regarding the Third Stipulation. III. The additional arguments raised by the Trustee do not merit prolonged discussion. The finding of the lower courts, that all three of the stipulations were for the purpose of granting Norwest adequate protection, is not clearly erroneous. The record supports the initial factual finding of the bankruptcy court that Norwest specifically required and received adequate protection in these transactions. The Trustee’s “alternative argument,” contending that fifty percent of the proceeds from the sale of the ranch must be paid to the Trustee for use in the debt- or’s business, was raised for the first time after trial. The district court’s holding that the Trustee’s dilatory effort to raise this argument was procedurally inappropriate, affording Norwest no opportunity to meet the argument, is well within the dis cretion of the district court. We approve and affirm. IV. The district court has written a comprehensive, clear, and well-reasoned opinion in this case. The bankruptcy court’s Order of June 22, 1989, is also concise and persuasive. We take particular notice of that court’s discussion of the equitable issues. Having clearly availed himself of the numerous benefits of the stipulations, but having not performed under their terms, it would be manifestly unjust to allow Trout and/or the Trustee to, essentially, withdraw from the terms of the agreements and to be free of the obligations. The Trustee" }, { "docid": "18881473", "title": "", "text": "the “same claim” for res judicata purposes. The operative question in each case is whether the claims arise out of the same nucleus of facts. As stated in the Restatement (Second) of Judgments, [t]he present trend is to see claim in factual terms and to make it coterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; regardless of the number of primary rights that may have been invaded; and regardless of the variations in the evidence needed to support the theories or rights. The transaction is the basis of the litigative unit or entity which may not be split. Restatement (Second) of Judgments § 24, comment a at 197 (1980). Similarly, the Lanes’ reliance in this suit on different substantive law and new legal theories does not preclude the operation of res judicata. One of the merits of the Restatement (Second)’s approach is that it prevents parties from suing on a claim that is in essence the same as a previously litigated claim but is dressed up to look different. Thus, where a plaintiff fashions a new theory of recovery or cites a new body of law that was arguably violated by a defendant’s conduct, res judicata will still bar the second claim if it is based on the same nucleus of operative facts as the pri- or claim. See Mills v. Des Arc Convalescent Home, 872 F.2d 823, 826-27 (8th Cir. 1989) (prior Title VII claim barred § 1981 claim); Chester v. St. Louis Homing Authority, 873 F.2d 207, 208-09 (8th Cir.1989) (procedural due process claim barred later claim for Title VII and equal protection violations); Hufsmith, 817 F.2d at 460-61 (prior Sherman Act claim barred tortious interference with contract claim); Headley v. Bacon, 828 F.2d 1272, 1275 (8th Cir.1987) (prior Title VII claim and later claims based on 42 U.S.C. §§ 1982, 1983, and 1985 were the same for res judicata purposes); Roach v. Teamsters Local Union No. 688, 595 F.2d 446, 449-50 (8th Cir.1979) (claim against union for breach" }, { "docid": "17285506", "title": "", "text": "is therefore dismissed as to her. C. Defendant American Bar Association Defendant American Bar Association moves to dismiss on the grounds that Plaintiffs Complaint is (1) barred by res judicata; (2) barred by the Rooker-Feldman doctrine; (3) barred by New Jersey’s entire controversy doctrine; and (3) fails to state a claim. Under the doctrine of 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.” Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir.1994) (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980)). Under both New York law and federal law, “the doctrine states that once a final judgment has been entered on the merits of a ease, that judgment will bar any subsequent litigation by the same parties or those in privity with them concerning ‘the transaction, or series of connected transactions, out of which the [first] action arose.’ ” Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997) (citing Restatement (Second) of Judgments § 24(1) (1982)). In determining whether a second suit is barred by this doctrine, the fact that the first and second suits involved the same parties, similar legal issues, similar facts, or essentially the same type of wrongful conduct is not dispositive. S.E.C. v. First Jersey Sec., Inc., 101 F.3d 1450, 1463’(2d Cir.1996), cert. denied, — U.S.-, 118 S.Ct. 57,139 L.Ed.2d 21 (1997). The first judgment will only preclude a second suit when it involves the same “transaction” or connected series of transactions as the earlier suit; in other words, “the second cause of action requires the same evidence to support it and is based on facts that were also present in the first.” Maharaj, 128 F.3d at 97. Under New York’s transactional approach to res judicata, however, the doctrine bars “a later claim arising out of the same factual grouping as an earlier litigated claim even if the later claim is based on different legal theories or seeks dissimilar or additional relief.” Burgos, 14 F.3d" } ]

[ { "docid": "6202142", "title": "", "text": "the appellants’ respective injuries. The appellants specifically rely on the good Samaritan principle, which makes one person liable to another for breach of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty is gratuitous. See Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Restatement, supra, §§ 323, 324A. It is appellants’ position that the requisites of the principle are satisfied because the Coast Guard negligently increased the risk of harm by allowing the ELIAS to continue discharging her cargo, or, alternatively, because they relied on the Coast Guard to ensure that the discharging operation was safe. The good Samaritan doctrine incorporates two theories of recovery, depending on whether the injured person is the direct beneficiary or a foreseeable third party beneficiary of gratuitously rendered services, neither of which, the government contends, apply to the facts of these cases. First, the government asserts that good Samaritan liability is foreclosed because the inspection of the ELIAS was incontrovertibly for the benefit of the government or the public at large, but not for the benefit of the appellants. Second, the government argues that it may be held liable to third parties only if they rely to their detriment on its undertaking, and not merely because its agents negligently increase the risk of harm. Third, it asserts that the appellants here have not stated a claim based on detrimental reliance. Federal courts recognize the good Samaritan rule as part of maritime tort law. We think that Restatement sections 323 and 324A state the rule correctly. Section 323 provides: Negligent Performance of Undertaking to Render Services One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking." } ]

[ { "docid": "3546427", "title": "", "text": "have worsened Frank’s position by taking the cruiser in tow. No such finding was made below and on the evidence such a finding could not reasonably have been made. The present claim must stand or fall on the theory that the Coast Guard was at fault solely in failing to get help to the decedent as soon as would have been the case had the rescue vessel been in proper condition and properly equipped and manned. If the United States is liable at all for negligence of the Coast Guard in connection with an attempted rescue operation, the responsibility of this public agency rises no higher than that of a private salvor. Upon that limitation the full bench of this court was agreed in P. Dougherty Co. v. United States, 3 Cir., 1953, 207 F.2d 626, certiorari denied 347 U.S. 912, 74 S.Ct. 476, 98 L.Ed. 1068, although on other points we were divided. We recognized that the Coast Guard, like a private salvor, renders voluntary assistance where no duty to help is owed the person or vessel in distress. True, it is a statutory function of the Coast Guard to establish and operate rescue facilities. 14 U.S.C. § 2. Congress has also provided that the “Coast Guard may render aid to persons and protect and save property at any time and at any place at which Coast Guard facilities and personnel are available and can be effectively utilized.” 14 U.S.C. § 88(b). But this legislation falls short of creating a governmental duty of affirmative action owed to a person or vessel in distress. Lacey v. United States, D.C.Mass.1951, 98 F.Supp. 219; see Indian Towing Co. v. United States, 1955, 350 U.S. 61, 69, 76 S.Ct. 122, 100 L.Ed. 48; cf. Restatement, Torts, § 314. An obligation to render aid may grow out of a relationship such as master and servant or ship and crewman. Kirincich v. Standard Dredging Co., 3 Cir., 1940, 112 F.2d 163; Di Nicola v. Pennsylvania R. R., 2 Cir., 1946, 158 F.2d 856; Sadler v. Pennsylvania R. R., 4 Cir., 1947, 159 F.2d 784. But" }, { "docid": "23621149", "title": "", "text": "(6th Cir.2000). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists only where there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505. The central issue is “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.” Id. at 251-52, 106 S.Ct. 2505. B. Analysis 1. The Plaintiffs’ Claim Against the United States The Suits in Admiralty Act (SIAA) “is the exclusive remedy against the United States for maritime torts.... In contrast to the Federal Tort Claims Act ..., the SIAA does not incorporate state tort law, inasmuch as maritime tort law is federal law.” Good v. Ohio Edison Co., 149 F.3d 413, 420 n. 13 (6th Cir.1998). The SIAA does not itself create a cause of action against the United States. See Good, 149 F.3d at 419. Rather, a plaintiff must show that the United States would be liable under maritime tort law for the same conduct. The United States Coast Guard does not have an affirmative duty to rescue persons in distress. Federal law merely provides that the Coast Guard “shall” establish and operate rescue facilities and that it “may” render aid to protect persons and property at any time such facilities are available. See 14 U.S.C. § 88. However, once" }, { "docid": "23621151", "title": "", "text": "the Coast Guard undertakes a rescue operation, it must act with reasonable care. See Patentas v. United States, 687 F.2d 707 (3d Cir.1982). Its actions are judged according to the so-called “Good Samaritan” doctrine. See id. at 713-14. Under this doctrine, a defendant is liable for breach- of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty was gratuitous. See id. (citing Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955)). The Restatement (Second) of Torts has described the doctrine as follows: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking. Restatement (Second) of Torts § 323b (1965). To prevail in this case, the Plaintiffs must prove that the Coast Guard was negligent in carrying out its rescue of Mr. Sagan, and that the Coast Guard’s negligence proximately caused some of his injuries. Thus, in order to survive summary judgment, the Plaintiffs must produce evidence sufficient to create a genuine issue of material fact as to whether the risk of physical harm to Mr. Sagan was increased by the Coast Guard’s negligence. “The test is not whether the risk was increased over what it would have been if the defendant had not been negligent,” but rather whether “the risk was increased over what it would have been had the defendant not engaged in the undertaking at all.” Myers v. United States, 17 F.3d 890, 903 (6th Cir.1994). With these standards in mind, we now proceed to evaluate the evidence in this case to determine whether it gives rise to a genuine issue of material fact as to whether the Coast Guard’s negligence proximately caused injury to Richard Sagan. The Plaintiffs do not" }, { "docid": "22857507", "title": "", "text": "Like the FTCA, the SIAA does not create a cause of action against the United States of America. See Myers v. United States, 17 F.3d 890, 894 (6th Cir.1994) [hereinafter Myers]. Thus, even assuming the discretionary function exception is not applicable as Ohio Edison contends, Ohio Edison must still show that a private entity would be liable under maritime tort law for the same conduct. See 46 U.S.C. § 742 (waiving sovereign immunity “[i]n eases where ... if a private person or property were involved, a proceeding in admiralty could be maintained”). a. Good Samaritan Liability Ohio Edison argues that maritime tort liability exists by virtue of the Good Samaritan Doctrine, “which makes one person liable to another for breach of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty is gratuitous.” Patentas, 687 F.2d at 713-14 (citing Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955)). The Restatement (Second) of Torts provides a more detailed statement of this rule: § 323. Negligent Performance of Undertaking to Render Services One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking. § 324A. Liability to Third Person for Negligent Performance of Undertaking One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person," }, { "docid": "23621150", "title": "", "text": "one party must prevail as a matter of law.” Id. at 251-52, 106 S.Ct. 2505. B. Analysis 1. The Plaintiffs’ Claim Against the United States The Suits in Admiralty Act (SIAA) “is the exclusive remedy against the United States for maritime torts.... In contrast to the Federal Tort Claims Act ..., the SIAA does not incorporate state tort law, inasmuch as maritime tort law is federal law.” Good v. Ohio Edison Co., 149 F.3d 413, 420 n. 13 (6th Cir.1998). The SIAA does not itself create a cause of action against the United States. See Good, 149 F.3d at 419. Rather, a plaintiff must show that the United States would be liable under maritime tort law for the same conduct. The United States Coast Guard does not have an affirmative duty to rescue persons in distress. Federal law merely provides that the Coast Guard “shall” establish and operate rescue facilities and that it “may” render aid to protect persons and property at any time such facilities are available. See 14 U.S.C. § 88. However, once the Coast Guard undertakes a rescue operation, it must act with reasonable care. See Patentas v. United States, 687 F.2d 707 (3d Cir.1982). Its actions are judged according to the so-called “Good Samaritan” doctrine. See id. at 713-14. Under this doctrine, a defendant is liable for breach- of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty was gratuitous. See id. (citing Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955)). The Restatement (Second) of Torts has described the doctrine as follows: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking. Restatement (Second) of Torts § 323b" }, { "docid": "6202144", "title": "", "text": "Section 324A provides: Liability to Third Person for Negligent Performance of Undertaking One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. The government takes the position, mentioned above, that detrimental reliance is the sine qua non of governmental liability as a good Samaritan. In other words, it contends that the Restatement formulation is not correct when an agent of the government is the actor. It advances this argument on the strength of cases that have held the Coast Guard negligent for, e.g., failing to maintain a lighthouse in operable condition, Indian Towing Co. v. United States, supra ; failing to mark a submerged barge, Lane v. United States, supra note 7; and failing to keep nautical charts accurate, De Bardeleben Marine Corp. v. United States, supra note 7. It is true that detrimental reliance has frequently been the reason for injury when a government agent acted as a good Samaritan. It does not follow, however, that if a government agent actually increases the risk of harm within the meaning of the Restatement that the government should not be liable for such negligence. The SIAA makes the government liable in the same circumstances in which a private person would be liable. In Frank v. United States, 250 F.2d 178 (3d Cir. 1957), cert. denied, 356 U.S. 962, 78 S.Ct. 1000, 2 L.Ed.2d 1069 (1958), this court considered the scope of the Coast Guard’s liability for a failed rescue attempt, which was voluntarily undertaken. Judge Hastie wrote for the court that, based on the responsibilities of private salvors, the government" }, { "docid": "2098308", "title": "", "text": "state tort law, inasmuch as maritime tort law is federal law.” Patentas v. United States, 687 F.2d 707, 713 (3d Cir.1982) (internal citations omitted); see Good v. Ohio Edison Company, 149 F.3d 413, 420 n. 13 (6th Cir.1998). The SIAA itself does not create a cause of action against the United States. See Good, 149 F.3d at 419; Myers v. United States, 17 F.3d 890, 894 (6th Cir.1994). Therefore, Plaintiffs must show that the United States (i.e., U.S. Coast Guard) would be liable under maritime tort law for the same conduct. Federal law provides that the United States Coast Guard “shall” establish and operate rescue facilities and that it “may” render aid to protect persons and property at any time such facilities are available. See 14 U.S.C. § 88; United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189, 195 (1st Cir.1967); Frank v. United States, 250 F.2d 178, 180 (3d Cir.1957); Albinder v. United States, 703 F.Supp. 246, 247 (S.D.N.Y.1987). The Coast Guard does not have an affirmative duty to rescue persons in distress. Once the Coast Guard undertakes a rescue operation, however, it must act with reasonable care, and its actions are judged according to the so-called “Good Samaritan” doctrine, the same as any private actor. See Patentas, 687 F.2d at 717; Korpi v. United States, 961 F.Supp. 1335, 1346 (N.D.Cal.1997); Albinder, 703 F.Supp. at 247; Kurowsky v. United States, 660 F.Supp. 442, 450 (S.D.N.Y.1986); Paul A. Kettunen, United States Coast Guard Rescue Operations and the Good Samaritan Doctrine, 76 Mich.B.J. 696 (July, 1997). The “Good Samaritan” doctrine “makes one person liable to another for breach of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty is gratuitous.” Patentas, 687 F.2d at 713-14 (citing Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955)); see Good, 149 F.3d at 419; Wellington Transportation Company v. United States, 481 F.2d 108, 111 (6th Cir.1973); United States v. Devane, 306 F.2d 182, 186 (5th Cir.1962); Kurowsky, 660 F.Supp. at 450; Albinder, 703 F.Supp. at 247; Miller v. United States, 614" }, { "docid": "2098307", "title": "", "text": "more than raise some doubt as to the existence of a fact; the nonmoving party must produce evidence that would be sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi Transportation Service, Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701, 1991 WL 49687 (6th Cir.1991). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505; see Cox v. Kentucky De partment of Transportation, 53 F.3d 146, 150 (6th Cir.1995). 2. Analysis a. Defendant United States’ Motion for Summary Judgment Plaintiffs filed suit against the United States pursuant to the Suits in Admiralty Act (“SIAA”), 46 U.S.C. §§ 740, et seq. (See Magistrate Judge Morgan’s Memorandum Opinion of July 31, 2000 at 2.) “The SIAA is the exclusive remedy against the United States for maritime torts.... In contrast to the Federal Tort Claims Act ..., the SIAA does not incorporate state tort law, inasmuch as maritime tort law is federal law.” Patentas v. United States, 687 F.2d 707, 713 (3d Cir.1982) (internal citations omitted); see Good v. Ohio Edison Company, 149 F.3d 413, 420 n. 13 (6th Cir.1998). The SIAA itself does not create a cause of action against the United States. See Good, 149 F.3d at 419; Myers v. United States, 17 F.3d 890, 894 (6th Cir.1994). Therefore, Plaintiffs must show that the United States (i.e., U.S. Coast Guard) would be liable under maritime tort law for the same conduct. Federal law provides that the United States Coast Guard “shall” establish and operate rescue facilities and that it “may” render aid to protect persons and property at any time such facilities are available. See 14 U.S.C. § 88; United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189, 195 (1st Cir.1967); Frank v. United States, 250 F.2d 178, 180 (3d Cir.1957); Albinder v. United States, 703 F.Supp. 246, 247 (S.D.N.Y.1987). The Coast Guard does not have an affirmative duty to rescue persons in" }, { "docid": "22857506", "title": "", "text": "1469, 1336, 1339, 1373, 1375) (Ex. 6); and (3) primary units are required to issue a Broadcast Notice to Mariners immediately upon receipt of a navigational aid discrepancy report (J.A. at 1336, 1372, 1407) (Ex. 6) and to publish at least weekly a Local Notice to Mariners including reference to all reported aid discrepancies (J.A. at 1336, 1134-35, 1142) (Exs.4, 6). Appellant’s Br. .at 12-14. The United States, on the other hand, maintains that because standard operating procedures are not equivalent to regulations and statutory directives, the SOPs that Ohio Edison contends have been violated do not as an initial matter constitute mandatory federal policies creating mandatory duties. Assuming this were true, the discretionary function exception would be applicable, and sovereign immunity would bar suit against the United States. Appellees’ Br. at 14. However, since we ultimately conclude below that Ohio Edison has not shown that the United States can be held liable under maritime tort law, we need not address the discretionary function issue to resolve this appeal. 2. Liability under Maritime. Tort Law Like the FTCA, the SIAA does not create a cause of action against the United States of America. See Myers v. United States, 17 F.3d 890, 894 (6th Cir.1994) [hereinafter Myers]. Thus, even assuming the discretionary function exception is not applicable as Ohio Edison contends, Ohio Edison must still show that a private entity would be liable under maritime tort law for the same conduct. See 46 U.S.C. § 742 (waiving sovereign immunity “[i]n eases where ... if a private person or property were involved, a proceeding in admiralty could be maintained”). a. Good Samaritan Liability Ohio Edison argues that maritime tort liability exists by virtue of the Good Samaritan Doctrine, “which makes one person liable to another for breach of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty is gratuitous.” Patentas, 687 F.2d at 713-14 (citing Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955)). The Restatement (Second) of Torts provides a more detailed statement of this rule: § 323. Negligent Performance" }, { "docid": "3546428", "title": "", "text": "person or vessel in distress. True, it is a statutory function of the Coast Guard to establish and operate rescue facilities. 14 U.S.C. § 2. Congress has also provided that the “Coast Guard may render aid to persons and protect and save property at any time and at any place at which Coast Guard facilities and personnel are available and can be effectively utilized.” 14 U.S.C. § 88(b). But this legislation falls short of creating a governmental duty of affirmative action owed to a person or vessel in distress. Lacey v. United States, D.C.Mass.1951, 98 F.Supp. 219; see Indian Towing Co. v. United States, 1955, 350 U.S. 61, 69, 76 S.Ct. 122, 100 L.Ed. 48; cf. Restatement, Torts, § 314. An obligation to render aid may grow out of a relationship such as master and servant or ship and crewman. Kirincich v. Standard Dredging Co., 3 Cir., 1940, 112 F.2d 163; Di Nicola v. Pennsylvania R. R., 2 Cir., 1946, 158 F.2d 856; Sadler v. Pennsylvania R. R., 4 Cir., 1947, 159 F.2d 784. But there is no such relational basis for a duty here. In the absence of any duty creating relationship the responsibility of a volunteer is strictly limited. He may be liable if the injured person has been harmed because of reliance upon some representation concerning the voluntary service. Indian Towing Co. v. United States, supra. More generally, if an attempted rescue or other voluntary service is so •conducted that it affirmatively injures the one in distress or worsens his positions, there may be liability. United States v. Lawter, 5 Cir., 1955, 219 F.2d 559; Eastern Air Lines v. Union Trust Co., 1955, 95 U.S.App.D.C. 189, 221 F.2d 62, affirmed per curiam, United States v. Union Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796; Restatement, Torts, §§ 323, 324. But again, we have in this •case none of these special liability creating factors. We have only a diligent rescue effort which proved ineffectual for lack of adequate equipment, preparation or personnel. For such ineffectual effort a private salvor is not liable. See the citation" }, { "docid": "22950353", "title": "", "text": "similar in some respects to the present case, is not relevant to the problem before us. That case simply concluded that the Coast Guard cannot be liable under the Tort Claims Act for “failing to adopt a policy of taking positive steps to protect the public . . . .” Id. at 538. Our proviso that had the issue in Gercey been based on allegations that the Coast Guard had “imperfectly executed] a federal program established either by an act of Congress or a.federal regulation”, id., the case would have required a different analysis, provides no support for plaintiffs’ position. The Southern Region’s directive was neither a statute nor a regulation. Moreover, our citation to Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) indicates that our proviso was limited to the imperfect execution of policy on which the public relied. . See note 2, supra. . The pertinent provisions of the Restatement of Torts 2d read as follows: “§ 323. Negligent Performance of Undertaking to Render Services One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection\" of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” “§ 324A. Liability to Third Person for Negligent Performance of Undertaking One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered" }, { "docid": "2098310", "title": "", "text": "F.Supp. 948, 954 (D.Me.1985); See Kettunen, supra, at 697. Maritime tort law recognizes the “Good Samaritan” doctrine of liability. See Good, 149 F.3d at 420; Patentas, 687 F.2d at 714. The Restatement (Second) of Torts (“Restatement”), Section 323 (entitled “Negligent Performance of Undertaking to Render Services”), provides a detailed statement of this doctrine: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking. Similarly, the Restatement (Second) of Torts, Section 324A (entitled “Liability to Third Person for Negligent Performance of Undertaking”), provides that: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. In the instant case, if the Coast Guard undertook to render services in order to aid Plaintiff Richard Sagan, then Plaintiffs must prove that the Coast Guard was negligent in carrying out that undertaking. See Good, 149 F.3d at 420; Myers, 17 F.3d at 902. Here, Plaintiffs assert that the Coast Guards’ failure to exercise reasonable care in the rescue operation increased the risk of physical harm to Plaintiff Richard Sagan. As in Good, 149 F.3d at 420, the parties focused on the element of proximate cause. “Of all the elements necessary to support recovery in a tort action," }, { "docid": "6536400", "title": "", "text": "not necessary but, in any event, there was sufficient evidence of worsening. We put aside the question of proximate cause since the finding of the District Court in that regard is not challenged. The worsening question arises under the Good Samaritan doctrine which provides that the negligence of the volunteer rescuer must worsen the position of the person in distress before liability will be imposed. United States v. Gavagan, supra, United States v. Lawter, 5 Cir., 1955, 219 F.2d 559; Restatement, Torts, §§ 323, 324; 38 Am. Jur. Negligence, § 17, p. 659. And the Tort Claims Act by its specific terms equates the liability of the government to that of a private person. §§ 1346(b) and 2674, Footnote 1, supra. See also, Indian Towing Co. v. United States, 1955, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48; and Rayonier, Inc. v. United States, 1957, 352 U.S. 315, 319, 77 S.Ct. 374, 1 L.Ed.2d 354. The failure of the District Court to make a finding as to worsening of position under the Good Samaritan doctrine, and the variance of the position of the parties here stems from their different interpretations of Gavagan. The District Court construed it to mean, and ap-pellee supports that position here, that the government has an affirmative responsibility under the National Search and Rescue Plan to rescue those in peril at sea and therefore any worsening of position would not be a consideration in determining liability for negligence arising therefrom. The position of the government, with which we agree, is that Gavagan went no further than affirming what is clear from the statutes — that the decision to undertake or abandon a rescue is discretionary with the Coast Guard and the other government agencies who participate in the National SAR plan. But having undertaken the rescue and engendered reliance thereon, the obligation arose to use reasonable care in carrying out the rescue. And negligence in the operation would create liability if it was the proximate cause of loss or damage where the position of one was worsened in reliance on the undertaking by the Coast" }, { "docid": "6202145", "title": "", "text": "to maintain a lighthouse in operable condition, Indian Towing Co. v. United States, supra ; failing to mark a submerged barge, Lane v. United States, supra note 7; and failing to keep nautical charts accurate, De Bardeleben Marine Corp. v. United States, supra note 7. It is true that detrimental reliance has frequently been the reason for injury when a government agent acted as a good Samaritan. It does not follow, however, that if a government agent actually increases the risk of harm within the meaning of the Restatement that the government should not be liable for such negligence. The SIAA makes the government liable in the same circumstances in which a private person would be liable. In Frank v. United States, 250 F.2d 178 (3d Cir. 1957), cert. denied, 356 U.S. 962, 78 S.Ct. 1000, 2 L.Ed.2d 1069 (1958), this court considered the scope of the Coast Guard’s liability for a failed rescue attempt, which was voluntarily undertaken. Judge Hastie wrote for the court that, based on the responsibilities of private salvors, the government might be liable either if the injured person relies on “some representation about the voluntary service” or if the attempted rescue “is so conducted that it affirmatively injures the one in distress or worsens his positions [sic].” Id. at 180. Since the Restatement formulation of the good Samaritan doctrine generally prescribes the circumstances of private liability and reflects accepted principles of duty and tort liability, we do not think that the Restatement test should be specially limited when the government is involved. The Supreme Court’s decision in Indian Towing Company v. United States, supra, is not to the contrary. In that case, a tugboat and a barge ran aground because a lighthouse operated by the Coast Guard was not functioning. Indian Towing Company alleged that the government was negligent for failing to maintain the lighthouse or for failing to warn vessels that it was inoperative. The Court held that the company might recover damages if negligence were proven: The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate" }, { "docid": "7377326", "title": "", "text": "need to emphasize again the unique distinctions of this case. No negligent error is found with respect to vessels undertaking the rescue service. The mistakes were of those ashore. At the time these critical decisive mistakes were made the rescue efforts were still underway and they were not abandoned until days thereafter. All of the personnel and. equipment deployed in this coordinated effort were there, not through a voluntary impulse to save, but by virtue of a positive duty to carry out the decisions of RCC in accordance with the National SAR Plan. The discretionary nature of the decision to undertake the rescue at the outset or the discretionary right to abandon— which was never exercised — does not alter the duty owing by those ashore and in command during the time the operation went on. In this respect it is virtually the same as Indian Towing. “The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light * * * and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable-under the Tort Claims Act,” 350 U.S. 61, at page 69, 76 S.Ct. 122, at page 126, 100 L.Ed. 48, at page 56. In addition we are also of the opinion that the facts fully meet the requirements of the Good Samaritan doctrine. See United States v. Lawter, 5 Cir., 1955, 219 F.2d 559, at page 562; and 38 Am.Jur. “Negligence,” § 17; Restatement, Torts, §§ 324, 323. The only element of any doubt is that of “worsening” the plight of the crew members of the Donald Ray. We think that adequately established. The members of the famir" }, { "docid": "2098309", "title": "", "text": "distress. Once the Coast Guard undertakes a rescue operation, however, it must act with reasonable care, and its actions are judged according to the so-called “Good Samaritan” doctrine, the same as any private actor. See Patentas, 687 F.2d at 717; Korpi v. United States, 961 F.Supp. 1335, 1346 (N.D.Cal.1997); Albinder, 703 F.Supp. at 247; Kurowsky v. United States, 660 F.Supp. 442, 450 (S.D.N.Y.1986); Paul A. Kettunen, United States Coast Guard Rescue Operations and the Good Samaritan Doctrine, 76 Mich.B.J. 696 (July, 1997). The “Good Samaritan” doctrine “makes one person liable to another for breach of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty is gratuitous.” Patentas, 687 F.2d at 713-14 (citing Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955)); see Good, 149 F.3d at 419; Wellington Transportation Company v. United States, 481 F.2d 108, 111 (6th Cir.1973); United States v. Devane, 306 F.2d 182, 186 (5th Cir.1962); Kurowsky, 660 F.Supp. at 450; Albinder, 703 F.Supp. at 247; Miller v. United States, 614 F.Supp. 948, 954 (D.Me.1985); See Kettunen, supra, at 697. Maritime tort law recognizes the “Good Samaritan” doctrine of liability. See Good, 149 F.3d at 420; Patentas, 687 F.2d at 714. The Restatement (Second) of Torts (“Restatement”), Section 323 (entitled “Negligent Performance of Undertaking to Render Services”), provides a detailed statement of this doctrine: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking. Similarly, the Restatement (Second) of Torts, Section 324A (entitled “Liability to Third Person for Negligent Performance of Undertaking”), provides that: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person" }, { "docid": "143760", "title": "", "text": "have been held liable here under the “Good Samaritan Doctrine”; because the Government gratuitously undertook to assume the duty of protecting those situated such as Jeffries from harm, it is liable for- its negligence in such undertaking. The Good Samaritan Doctrine, which is recognized under the applicable law of Montana, is a theory of liability encompassed by the Federal Tort Claims Act. Roberson v. United States, 382 F.2d 714, 718 (9th Cir. 1967). Roberson, the leading case on the issue now under consideration, distinguished the two forms of the Good Samaritan Doctrine as described in the Restatement of Torts, Second. Restatement of Torts, Second, § 323 provides for liability in the “two-person” situation. Restatement of Torts, Second, § 324A, the “three-person” section primarily relied on here, provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Under Roberson, supra at 721, the following elements are necessary to a claim under § 324A: (1.) The actor, in this case the Government, must undertake, gratuitously or for consideration, to render services to another; (2.) The services so rendered must be of a kind which the actor should recognize as necessary for the protection of third persons [in this case those situated like the plaintiff]; (3.) The actor must fail to exercise reasonable care in the performance of his undertaking; (4.) The failure to exercise reasonable care must result in physical harm to the third persons or their things; and (5.) The actor’s failure to exercise such care must (a) increase the risk of such harm, or (b) the undertaking must" }, { "docid": "2098311", "title": "", "text": "or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. In the instant case, if the Coast Guard undertook to render services in order to aid Plaintiff Richard Sagan, then Plaintiffs must prove that the Coast Guard was negligent in carrying out that undertaking. See Good, 149 F.3d at 420; Myers, 17 F.3d at 902. Here, Plaintiffs assert that the Coast Guards’ failure to exercise reasonable care in the rescue operation increased the risk of physical harm to Plaintiff Richard Sagan. As in Good, 149 F.3d at 420, the parties focused on the element of proximate cause. “Of all the elements necessary to support recovery in a tort action, causation is the most susceptible to summary determination.” American & Foreign Insurance Co. v. General Electric Co., 45 F.3d 135, 140 (6th Cir.1995) (citation omitted). Defendant United States asserts that there is no evidence that it was the proximate cause of Plaintiff Richard Sagan’s injuries. The Coast Guard is liable only if its failure to exercise due care was a proximate cause of the person’s injury. See Albinder, 703 F.Supp. at 248; Miller, 614 F.Supp. at 954. In order to demonstrate proximate cause, Plaintiffs must show that the Coast Guard, through affirmative actions, caused “ ‘some physical change to the environment or some other material alteration of circumstances.’ ” Patentas, 687 F.2d at 717 (quoting Restatement, § 324A cmt. c, illus. 1); see Good, 149 F.3d at 421; Myers, 17 F.3d at 903. “The test is not whether the risk was increased over what it would have been if the defendant had not been negligent,” but rather whether “the risk [wa]s increased over what it would have been had the defendant not engaged in the" }, { "docid": "22857508", "title": "", "text": "of Undertaking to Render Services One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking. § 324A. Liability to Third Person for Negligent Performance of Undertaking One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Restatement (Second) of Torts §§ 323, 324A (1965). Maritime tort law has been held to recognize the good Samaritan theory of liability. See Patentas, 687 F.2d at 714. The threshold issue is typically whether the Coast Guard undertook to render services with respect to the Aid to the plaintiffs or. for the benefit of plaintiffs. See Myers, 17 F.3d at 902. Ohio Edison must then show that the Coast Guard was negligent in carrying out that undertaking. See id. While the United States maintains that the responsibility for establishing, operating, and maintaining privately-owned aids to navigation lies not with the Coast Guard but with the private owner as illustrated by 33 C.F.R. §§ 66.01-3, 66.01-20, the record is unclear as to whether the Coast Guard has undertaken to perform annual inspections of the Aid and to disseminate accurate and complete discrepancy information regarding this Aid through its Broadcast and Local Notices. For purposes of this opinion," }, { "docid": "6202141", "title": "", "text": "cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States. 46 U.S.C. § 742 (1976). The SIAA is the exclusive remedy against the United States for maritime torts. 28 U.S.C. § 2680(d) (1976); Beeler v. United States, 338 F.2d 687, 689 (3d Cir. 1964). In contrast to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1976), the SIAA does not incorporate state tort law, inasmuch as maritime tort law is federal law. E.g., Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 408, 3 L.Ed.2d 550 (1959); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-10, 74 S.Ct. 202, 204-05, 98 L.Ed. 143 (1953). The appellants contend that if a private person had undertaken the inspection of the ELIAS, under the facts and maritime tort law, that person would be liable for the appellants’ respective injuries. The appellants specifically rely on the good Samaritan principle, which makes one person liable to another for breach of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty is gratuitous. See Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Restatement, supra, §§ 323, 324A. It is appellants’ position that the requisites of the principle are satisfied because the Coast Guard negligently increased the risk of harm by allowing the ELIAS to continue discharging her cargo, or, alternatively, because they relied on the Coast Guard to ensure that the discharging operation was safe. The good Samaritan doctrine incorporates two theories of recovery, depending on whether the injured person is the direct beneficiary or a foreseeable third party beneficiary of gratuitously rendered services, neither of which, the government contends, apply to the facts of these cases. First, the government asserts that good Samaritan liability is foreclosed because the inspection of the ELIAS was incontrovertibly for the benefit of the government or" } ]

[ { "docid": "22636109", "title": "", "text": "(5th Cir.1994); United States v. Iwegbu, 6 F.3d 272 (5th Cir.1993). . Peretz, 501 U.S. at 952-53, 111 S.Ct. at 2678; United States v. Robinson, 485 U.S. 25, 34, 108 S.Ct. 864, 870, 99 L.Ed.2d 23 (1988) (Blackmun, J., concurring in part and dissenting in part); Socony-Vacuum, 310 U.S. at 239, 60 S.Ct. at 851-52; Atkinson, 297 U.S. at 160, 56 S.Ct. at 392. . Olano, - U.S. at -, 113 S.Ct. at 1777. . Young, 470 U.S. at 16 n. 14, 105 S.Ct. at 1047 n. 14. . Frady, 456 U.S. at 163, 102 S.Ct. at 1592. . More recent cases include: Bermea; Knowles, United States v. Solomon, 29 F.3d 961 (5th Cir.1994); Miro; Stafford; Saenz-Forero; United States v. Andrews, 22 F.3d 1328 (5th Cir.1994); United States v. Castaneda-Cantu, 20 F.3d 1325 (5th Cir.1994); United States v. Puig-Infante, 19 F.3d 929 (5th Cir.), cert. denied, - U.S -, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994); United States v. Cordero, 18 F.3d 1248 (5th Cir.1994); United States v. Wilder, 15 F.3d 1292 (5th Cir.1994); Rodriguez; United States v. Carreon, 11 F.3d 1225 (5th Cir.1994); United States v. McCaskey, 9 F.3d 368 (5th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994); United States v. Restivo, 8 F.3d 274 (5th Cir.1993), cert. denied, - U.S. -, 115 S.Ct. 54, - L.Ed.2d - (1994); United States v. Samak, 7 F.3d 1196 (5th Cir.1993); Iwegbu; United States v. Graves, 5 F.3d 1546 (5th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1829, 128 L.Ed.2d 459 (1994); United States v. Guerrero, 5 F.3d 868 (5th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1111, 127 L.Ed.2d 422 (1994); United States v. Mora, 994 F.2d 1129 (5th Cir.), cert. denied - U.S. -, 114 S.Ct. 417, 126 L.Ed.2d 363 (1993); United States v. Barakett, 994 F.2d 1107 (1993), cert. denied, - U.S. -, 114 S.Ct. 701, 126 L.Ed.2d 668 (1994); United States v. El-Zoubi, 993 F.2d 442 (5th Cir.1993); United States v. Pofahl, 990 F.2d 1456 (5th Cir.), cert. denied sub nom., Nunn v. United States, - U.S. -, 114 S.Ct." } ]

[ { "docid": "11389810", "title": "", "text": "Adams’ search of the notebook and delivery of the notebook to the DEA violated his rights under the Fourth Amendment, because Adams exercised discretion which was not adequately constrained by standard MPPD regulations governing inventory searches. In reviewing the denial of a motion to suppress which alleges a violation of the Fourth Amendment, “we must accept the district court’s purely factual findings unless they are clearly erroneous or influenced by an incorrect view of the law.” United States v. Hahn, 922 F.2d 243, 245 (5th Cir.1991); see also United States v. Ramirez, 963 F.2d 693, 704-05 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 388, 121 L.Ed.2d 296 (1992). However, “[t]he ultimate determination of reasonableness of the search ... is a conclusion of law,” which we review de novo. Hahn, 922 F.2d at 245; see also United States v. Capote-Capote, 946 F.2d 1100, 1102 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992). We will not find a district court’s factual determination to be clearly erroneous unless we are left with the definite and firm conviction that a mistake has been committed, United States v. Mitchell, 964 F.2d 454, 457-58 (5th Cir.1992), and we view the evidence in the light most favorable to the party that prevailed below. See Ramirez, 963 F.2d at 705; Carpote-Capote, 946 F.2d at 1102. “The fourth amendment proscribes ... unreasonable searches and seizures. To be reasonable a search must normally be conducted pursuant to a warrant, but courts have long recognized an exception to the warrant requirement for so-called ‘inventory searches’ of automobiles.” United States v. Prescott, 599 F.2d 103, 105 (5th Cir.1979) (citations omitted); see South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). “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.” United States v. Gallo, 927 F.2d 815, 819 (5th Cir.1991) (citing Opperman, 428 U.S. at" }, { "docid": "23129863", "title": "", "text": ". See Munoz-Guerra, 788 F.2d at 298-99 (\"Had the police’s necessary efforts to secure the premises been visible to the inhabitants or had there been reason to believe that someone in the condominium was in need of immediate succor, the government's position [that exigent circumstances justified the warrantless entry] would have merit.”). . Compare United States v. Curzi, 867 F.2d 36, 42-43 (1st Cir.1989) (noting that agents’ decision to reveal their presence \"was not prompted by any activity in the house or any exigent circumstances”) with United States v. Capote-Capote, 946 F.2d 1100, 1103 (5th Cir.1991) (\"This is not a case like Thompson or [U.S. v. ] Scheffer, [463 F.2d 567 (5th Cir.1972)] in which the government controlled the timing of the transaction. ...’’), cert. denied, 504 U.S. 942, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992). . United States v. Webster, 750 F.2d 307, 327 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985); see United States v. Hultgren, 713 F.2d 79, 88 (5th Cir.1983) (\"The fact that the exigency might have been foreseeable does not control.\"). . Hultgren, 713 F.2d at 88 (emphasis in original). . Manuel maintains that the agents lied; he claims he never confessed to the agents that he was involved in a conspiracy to distribute narcotics. We leave the resolution of such credibility choices to the trier of fact. . United States v. Rojas-Martinez, 968 F.2d 415, 417 (5th Cir.), cert. denied, - U.S. -, 113 S.Ct. 828, 121 L.Ed.2d 698 (1992) and - U.S. -, 113 S.Ct. 995, 122 L.Ed.2d 146 (1993). . United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1347 (5th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 103, 130 L.Ed.2d 51 (1994). . United States v. Iwegbu, 6 F.3d 272, 274-75 (5th Cir.1993). . United States v. Richard, 994 F.2d 244, 250 (5th Cir.1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973)). . Id. (citing United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.), cert. denied, - U.S. -, 113 S.Ct. 2427, 124 L.Ed.2d 647 (1993)); accord" }, { "docid": "3763549", "title": "", "text": "United States v. Capote-Capote, 946 F.2d 1100 (5th Cir.1991) (citation omitted), cert. denied, 504 U.S. 942, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992). . Brock v. United States, 223 F.2d 681, 685 (5th Cir.1955) (internal quotation marks omitted) (citation omitted) (\"Whatever quibbles there may be as to where the curtilage begins and ends, clear it is that standing on a man’s premises and looking in his bedroom window is a violation of his right to be let alone as guaranteed by the Fourth Amendment\"). See also United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (discussing fourth amendment protection of residential curtilage). To support its contrary proposition the government cites United States v. James, 40 F.3d 850 (7th Cir.1994), cert. denied, - U.S.-, 115 S.Ct. 948, 130 L.Ed.2d 891 (1995). This Seventh Circuit case, aside from being in some respects contrary to this circuit’s precedent in Brock, is factually distinguishable. In James, the police approached the back door of a duplex reasonably believed to be “a principal means of access to the dwelling” along a paved walkway \"readily accessible to the general public.” Id., 40 F.3d at 862. The defendants’ yard had no such walkway and there is no record evidence suggesting that anyone considered the back door a \"principal means of access” to 2302 Bleker Street. . We assume arguendo the highly debatable proposition that Weston had probable cause to believe that Thomas was hiding inside the house. . Rico; United States v. Richard, 994 F.2d 244 (5th Cir.1993). . Id. . Thus, this case does not involve the exigent circumstance of \"hot pursuit.” Welsh v. Wisconsin. 466 U.S. 740, 753, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732 (1984) (\"the claim of hot pursuit is unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of a crime”); United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300 (1976) (“ 'hot pursuit' means some sort of a chase”). . Compare Richard; United States v. Munoz-Guerra, 788 F.2d 295 (5th Cir.1986). . There is no" }, { "docid": "3763548", "title": "", "text": "S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Rico, 51 F.3d 495 (5th Cir.), cert. denied, - U.S.-, 116 S.Ct. 220, 133 L.Ed.2d 150 (1995). . United States v. Hassan, 83 F.3d 693 (5th Cir.1996); United States v. Restrepo, 966 F.2d 964 (5th Cir.1992), cert. denied, 506 U.S. 1049, 113 S.Ct. 968, 122 L.Ed.2d 124 (1993). Accord, United States v. Shamaeizadeh, 80 F.3d 1131 (6th Cir.1996); United States v. Markling, 7 F.3d 1309 (7th Cir.1993). . United States v. Roch, 5 F.3d 894 (5th Cir.1993). See also Rico (government bears burden of proving existence of exigent circumstances sufficient to rebut presumption that a warrant-less search is unreasonable). . See Whren v. United States, - U.S.-, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (proper focus of fourth amendment inquiry is objective conduct, and not subjective intent, of police officer); United States v. Causey, 834 F.2d 1179 (5th Cir.1987) (en banc) (same). Because the district court's ruling was influenced by an incorrect view of the law the factual findings on this issue are due no deference. United States v. Capote-Capote, 946 F.2d 1100 (5th Cir.1991) (citation omitted), cert. denied, 504 U.S. 942, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992). . Brock v. United States, 223 F.2d 681, 685 (5th Cir.1955) (internal quotation marks omitted) (citation omitted) (\"Whatever quibbles there may be as to where the curtilage begins and ends, clear it is that standing on a man’s premises and looking in his bedroom window is a violation of his right to be let alone as guaranteed by the Fourth Amendment\"). See also United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (discussing fourth amendment protection of residential curtilage). To support its contrary proposition the government cites United States v. James, 40 F.3d 850 (7th Cir.1994), cert. denied, - U.S.-, 115 S.Ct. 948, 130 L.Ed.2d 891 (1995). This Seventh Circuit case, aside from being in some respects contrary to this circuit’s precedent in Brock, is factually distinguishable. In James, the police approached the back door of a duplex reasonably believed to be “a principal means of access" }, { "docid": "22169903", "title": "", "text": "light most favorable to the Government, to support the constructive possession instruction. Testimony disclosed that Munoz had asserted ownership of both the sawed-off shotgun and pistol. See Torres, 114 F.3d at 524; see also United States v. Warren, 594 F.2d 1046, 1050 (5th Cir.1979) (co-defendant’s testimony that she and defendant jointly owned the contraband and the car in which it was found supported finding of constructive possession). This proof establishes the constructive possession instruction as appropriate. VII Munoz, citing our decision in United States v. Mergerson, 4 F.3d 337, 349 (5th Cir.1993), cert. denied, 510 U.S. 1198, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994), maintains that the Government failed to present sufficient evidence to prove him either actually or constructively possessing the sawed-off shotgun. The trial judge rejected a motion for a judgment of acquittal based on this theory. We review the denial of a motion for a judgment of acquittal de novo. See United States v. Greer, 137 F.3d 247, 249 (5th Cir.1998), cert. denied, — U.S. —, 118 S.Ct. 2305, 141 L.Ed.2d 164 (1998). In doing so, we consider “whether, viewing the evidence in the light most favorable to the government, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” Id. We conclude that the Government provided ample evidence to establish possession of the sawed-off shotgun. Wheeler reported witnessing Munoz handle the sawed-off shotgun, which discloses actual possession. See United States v. Ivy, 973 F.2d 1184, 1188 (5th Cir.1992) (defendant actually possessed illegal narcotics when he took a package containing them and began to open it), cert. denied, 507 U.S. 1022, 113 S.Ct. 1826, 123 L.Ed.2d 455 (1993). Moreover, both she and Telles stated that, during the time he was living in the Rojas apartment, Munoz had said that the sawed-off shotgun, which each of them had seen there, was his. This testimony suffices to show constructive possession. See Torres, 114 F.3d at 524; see also Warren, 594 F.2d at 1050. It, indeed, separates this case from Mergerson, 4 F.3d at 349, where we held that the Government must" }, { "docid": "23581254", "title": "", "text": "government to show more than mere strategic proximity. Id. Here, the government contends that both doctrines apply to this case and support the jury’s verdict. Under either of the above theories, the government’s proof must show beyond a reasonable doubt that the accused “used” or “carried” a firearm, “during and in relation” to a prosecutable drug trafficking crime. Here, the government had to prove that appellant used the three firearms in question in connection with his plan to manufacture and traffic in amphetamine. See United States v. Blankenship, 923 F.2d 1110, 1114 (5th Cir.1991); United States v. Boyd, 885 F.2d 246, 250 (5th Cir.1989). Possession of a firearm does not constitute “use” unless the gun formed a part of the narcotics crime. See United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir.1988). “Use” does not require the government to prove actual use such as the discharging of or brandishing of the weapon. The government may meet its burden by simply showing that the weapons facilitated, or could have facilitated, the drug trafficking offense. See United States v. Capote-Capote, 946 F.2d 1100, 1104 (5th Cir. 1991), cert. denied sub nom., Rodriguez v. United States, — U.S. -, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992); see also United States v. Blake, 941 F.2d 334, 342 (5th Cir. 1991), cert. denied, — U.S. -, 113 S.Ct. 596, 121 L.Ed.2d 533 (1992); United States v. Beverly, 921 F.2d 559, 562-63 (5th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2869, 115 L.Ed.2d 1035 (1991); Blankenship, 923 F.2d at 1114; United States v. Rocha, 916 F.2d 219, 237 (5th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991); United States v. Coburn, 876 F.2d 372, 375 (5th Cir.), reh’g denied, 885 F.2d 870 (5th Cir.1989) (en banc); S.Rep. No. 225, 98th Cong., 2d Sess. 314 n. 10, reprinted in 1984 U.S.C.C.A.N. 3182, 3492 n. 10. To determine whether a defendant “used” a firearm, the Court should look not solely to the defendant’s intent, but to the totality of the circumstances. Blankenship, 923 F.2d at 1115 (5th Cir.1991). Further, the language" }, { "docid": "1726183", "title": "", "text": "of three bales of cocaine and fired at police officers); United States v. Thomas, 12 F.3d 1350, 1361-62 (5th Cir.1994) (AR-15 rifle modified to fire as a machine gun used by defendant for protection because of \"his line of business” in conspiracy to distribute cocaine, amphetamine, methamphetamine and marijuana), cert. denied, 511 U.S. 1095, 114 S.Ct. 1861, 128 L.Ed.2d 483 (1994), 511 U.S. 1114, 114 S.Ct. 2119, 128 L.Ed.2d 676 (1994); United States v. Garcia, 997 F.2d 1273, 1277 (9th Cir.1993) (machine gun used to protect and embolden drug dealer found in house with a kilo of heroin, 4.5 kilos of cocaine, and 1.24 grams of cocaine base); United States v. Sims, 975 F.2d 1225, 1230 (6th Cir.1992) (ATF agents discover two AR-15 rifles, converted to fire fully automatically, and 257 rounds of ammunition in the back seat of a car in connection with the arrest of defendants attempting to buy $337,500 worth of cocaine); United States v. Capote-Capote, 946 F.2d 1100, 1102-04 (5th Cir.1991) (machine gun used to protect kilogram of cocaine), cert. denied, 504 U.S. 942, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992); United States v. Moore, 919 F.2d 1471 (10th Cir.1990) (loaded British Sten machine gun.found in open closet of room containing cocaine, ziplock bags, weighing scale, dealing records, $3,400, and a calculator); United States v. Rogers, 921 F.2d 1089 (10th Cir.1990) (same facts as recited in Moore), modified, 925 F.2d 1285 (10th Cir.), cert. denied, 501 U.S. 1211, 111 S.Ct. 2812, 115 L.Ed.2d 985 (1991); United States v. Lucas, 932 F.2d 1210, 1223-24 (8th Cir.) (along with thirteen other guns, machine gun “kept at the ready” to safeguard crack house and facilitate illegal manufacture and trade in crack cocaine), cert. denied, 502 U.S. 869, 112 S.Ct. 199, 116 L.Ed.2d 159 (1991), 502 U.S. 949, 112 S.Ct. 399, 116 L.Ed.2d 348 (1991), 502 U.S. 991, 112 S.Ct. 609, 116 L.Ed.2d 632 (1991), 502 U.S. 1100, 112 S.Ct. 1186, 117 L.Ed.2d 429 (1992); United States v. Matra, 841 F.2d 837, 839 (8th Cir.1988) (machine gun, along with eight other weapons, made the crack house a \"veritable fortress”). ." }, { "docid": "22935048", "title": "", "text": ". United States v. Tilley, 18 F.3d 295 (5th Cir.), cert. denied, - U.S. -, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994). . United States v. Deshaw, 974 F.2d 667, 669 (5th Cir.1992). . Wittie, 25 F.3d at 255. . United States v. Boldin, 772 F.2d 719 (11th Cir.1985), cert. denied, 475 U.S. 1048, 1098, 1110, 106 S.Ct. 1269, 1498, 1520, 89 L.Ed.2d 577, 899, 917 (1986). . See United States v. Michel, 588 F.2d 986, 1001 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . United States v. Elam, 678 F.2d 1234, 1245 (5th Cir.1982). . United States v. Richerson, 833 F.2d 1147, 1153 (5th Cir.1987). . ' Id. . United States v. Morris, 46 F.3d 410, 415 (5th Cir.), cert. denied, - U.S. -, 115 S.Ct. 2595, 132 L.Ed.2d 842 (1995). . Richerson, 833 F.2d at 1154. . The parties dispute whether the gun was in or next to the safe. However, Government’s Exhibit 16.4 clearly shows that the shotgun was too long to fit in the safe. Therefore, it must have been next to the safe. . United States v. Mergerson, 4 F.3d 337, 349 (5th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994). . Id. . Id. . Although Ross presented evidence that he did not live at the home at the time of the search because he was having problems with his wife, the jury was free to disbelieve such evidence. . United States v. Capote-Capote, 946 F.2d 1100, 1102 (5th Cir.1991); cert. denied, 504 U.S. 942, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992). . United States v. Shabazz, 993 F.2d 431, 435 n. 3 (5th Cir.1993); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.1987) (enbanc). . Causey, 834 F.2d at 1184. . R. 25:161. . United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc), cert. denied, - U.S. -, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995). . Officer Oulliber testified that “99 out of" }, { "docid": "22049644", "title": "", "text": "issue. The nexus requirement that Condren urges is borrowed from 18 U.S.C. § 924(c) (proscribing the use or carrying of a firearm “during and in relation to any crime of violence or drug trafficking crime” (emphasis added)). See, e.g., United States v. Pace, 10 F.3d 1106, 1117-18 (5th Cir.1993) (applying § 924(c)); United States v. Capote-Capote, 946 F.2d 1100, 1104 (5th Cir.1991), cert. denied, — U.S. ——, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992) (same). Although, as the Tenth Circuit has noted, the standard of proof required under § 924(c) “provides some guidance” in construing § 2K2.1(b)(5), United States v. Gomez-Arrellano, 5 F.3d 464, 466 (10th Cir.1993), we decline to adopt it as the controlling standard. First, § 924(c) expressly proscribes the use or carrying of a firearm during or in relation to a drug trafficking crime or crime of violence; in contrast, § 2K2.1(b)(5) mandates an enhancement even if the defendant only possesses a firearm in connection with any other felony. U.S.S.G. § 2K2.1(b)(5); see United States v. Sanders, 990 F.2d 582, 585 (10th Cir.) (rejecting defendant’s contention that § 924(c) standard should control § 2K2.1(b)(5) determination), cert. denied, — U.S. -, 114 S.Ct. 216, 126 L.Ed.2d 172 (1993). Second, § 924(c) is a criminal statute, requiring that the government prove, beyond a reasonable doubt, the relationship of the firearm to the drug trafficking crime or the crime of violence. Pace, 10 F.3d at 1117. In contrast, because the subsection in issue is under the Sentencing Guidelines, the relationship need be proved only by a preponderance of the evidence. United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991); United States v. Kinder, 946 F.2d 362 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2290, 119 L.Ed.2d 214 (1992), cited in United States v. Mergerson, 4 F.3d 337, 343 (5th Cir.1993), petition for cert. filed (U.S. Dec. 21, 1993) (No. 93-7246). The government urges that we construe the enhancement phrase according to its literal and straightforward meaning. See Sanders, 990 F.2d at 585 (“We think it appropriate to apply the phrase ‘in connection with’ in a straightforward and" }, { "docid": "11389809", "title": "", "text": "from his car, on the grounds that the search of his vehicle was an unreasonable search in violation of the Fourth Amendment. Andrews also moved to suppress statements he made to federal officers following his arrest for DUI, arguing that use of those statements at trial would violate the Fifth Amendment. The district court denied both motions to suppress. The jury convicted Andrews on both counts, and the district court sentenced him to 136 months imprisonment. II A Andrews contends that the district court erred by admitting into evidence a notebook which was seized during a warrantless inventory search of Andrews’ ear after he was arrested for DUI. While .conducting an inventory of the contents of Andrews’ vehicle, MPPD Patrolman Doug Adams opened a red spiral notebook, and observed a diagram which he thought might be of evidentiary value to the DEA. Adams turned the notebook over to the DEA. Before trial Andrews moved to suppress the notebook, and after conducting an evidentiary hearing, the district court denied the motion to suppress. Andrews contends that Adams’ search of the notebook and delivery of the notebook to the DEA violated his rights under the Fourth Amendment, because Adams exercised discretion which was not adequately constrained by standard MPPD regulations governing inventory searches. In reviewing the denial of a motion to suppress which alleges a violation of the Fourth Amendment, “we must accept the district court’s purely factual findings unless they are clearly erroneous or influenced by an incorrect view of the law.” United States v. Hahn, 922 F.2d 243, 245 (5th Cir.1991); see also United States v. Ramirez, 963 F.2d 693, 704-05 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 388, 121 L.Ed.2d 296 (1992). However, “[t]he ultimate determination of reasonableness of the search ... is a conclusion of law,” which we review de novo. Hahn, 922 F.2d at 245; see also United States v. Capote-Capote, 946 F.2d 1100, 1102 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992). We will not find a district court’s factual determination to be clearly erroneous unless we are" }, { "docid": "22347812", "title": "", "text": "387 (1978) (passengers in a car driven by its owner did not have standing to raise the Fourth Amendment); United States v. Lee, 898 F.2d 1034 (5th Cir.1990), cert. denied, - U.S. -, 113 S.Ct. 1057, 122 L.Ed.2d 363 (1993) (driver of and passenger in a truck rented by a third party and being operated at third party’s behest have standing to raise the Fourth Amendment). . Some of our cases have termed this practice a “vehicle frisk.” See United States v. Hernandez, 901 F.2d 1217, 1220 (5th Cir.1990); United States v. Basey, 816 F.2d 980, 991 (5th Cir.1987). . Although some courts have held that a lawful traffic stop may nonetheless violate the Fourth Amendment if the stop was merely a pretext to allow officers to search for contraband, see United States v. Smith, 799 F.2d 704, 708 (11th Cir.1986); United States v. Guzman, 864 F.2d 1512, 1517 (10th Cir.1988), this Court has rejected that position. In Causey, we said that \"so long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry.” 834 F.2d at 1184. We note too that most circuits agree with Causey. See United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir.1990), cert. denied, - U.S. -, 112 S.Ct. 428, 116 L.Ed.2d 449 (1991); United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir.1989), cert. denied, - U.S. -, 112 S.Ct. 428, 116 L.Ed.2d 449 (1991); United States v. Hawkins, 811 F.2d 210, 212-15 (3d Cir.), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987); see also United States v. Rusher, 966 F.2d 868, 885-89 (4th Cir.), cert. denied, - U.S. -, 113 S.Ct. 351, 121 L.Ed.2d 266 (1992) (Luttig, J., concurring in part); cf. United States v. French, 974 F.2d 687, 692 n. 4 (6th Cir.1992), cert. denied, -U.S. -, 113 S.Ct. 1012, 122 L.Ed.2d 160 (1993). Even if \"pretext” could theoretically render an otherwise lawful stop invalid, the district court found that the stop was \"a valid, nonpretext traffic stop for" }, { "docid": "23581255", "title": "", "text": "United States v. Capote-Capote, 946 F.2d 1100, 1104 (5th Cir. 1991), cert. denied sub nom., Rodriguez v. United States, — U.S. -, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992); see also United States v. Blake, 941 F.2d 334, 342 (5th Cir. 1991), cert. denied, — U.S. -, 113 S.Ct. 596, 121 L.Ed.2d 533 (1992); United States v. Beverly, 921 F.2d 559, 562-63 (5th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2869, 115 L.Ed.2d 1035 (1991); Blankenship, 923 F.2d at 1114; United States v. Rocha, 916 F.2d 219, 237 (5th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991); United States v. Coburn, 876 F.2d 372, 375 (5th Cir.), reh’g denied, 885 F.2d 870 (5th Cir.1989) (en banc); S.Rep. No. 225, 98th Cong., 2d Sess. 314 n. 10, reprinted in 1984 U.S.C.C.A.N. 3182, 3492 n. 10. To determine whether a defendant “used” a firearm, the Court should look not solely to the defendant’s intent, but to the totality of the circumstances. Blankenship, 923 F.2d at 1115 (5th Cir.1991). Further, the language “during and in relation to” refers to Congress’ intent to avoid convictions for inadvertently carrying a firearm in an unrelated crime. Id. Accordingly, the presence of loaded firearms at a defendant’s home containing of drugs, money, and ammunition also may be sufficient to establish the use of a firearm as an integral part of a drug trafficking crime. See United States v. Blake, 941 F.2d at 342-43; Capote-Capote, 946 F.2d at 1104; United States v. Molinar-Apodaca, 889 F.2d 1417, 1424 (5th Cir.1989). “Where several guns ... are found on the premises of a drug laboratory, the obvious inference is that they were there to protect the unlawful activity.” United States v. McKeever, 906 F.2d 129, 134 (5th Cir.1990), cert. denied, 498 U.S. 1070, 111 S.Ct. 790, 112 L.Ed.2d 852 (1991). Further, we have held “that the [government is only obliged to show that the firearm was available to provide protection to the defendant in connection with his engagement in drug trafficking; _” Molinar-Apodaca, 889 F.2d at 1424, citing United States v. Raborn, 872 F.2d 589," }, { "docid": "22935044", "title": "", "text": "more than fifteen kilograms of crack cocaine. This finding was a factual one, which we review only for clear error. Our review of the record convinces us that the district court did not err. Ross was involved as a high-level, supervisory member of the Ray Fields conspiracy for several years. This conspiracy resulted in the sale of more than 1,000 kilograms of crack cocaine. Thus, the district court was justified in finding that Ross’ offense involved more that fifteen kilograms. Finding no error in Ross’ sentencing, we affirm Ross’ sentence. IX. CONCLUSION We VACATE Ray Fields’ conviction on count two (conspiracy), and AFFIRM the district court in all other respects. VACATED IN PART AND AFFIRMED IN PART. . Such challenges are known as Batson challenges. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). . Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). . Id. . Id. . Id. . Id. . Id. . United States v. Clemons, 941 F.2d 321, 325 (5th Cir.1991). . United States v. Seals, 987 F.2d 1102, 1109 (5th Cir.), cert. denied, - U.S. -, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993); Polk v. Dixie Ins. Co., 972 F.2d 83, 85 (5th Cir.1992), cert. denied, 506 U.S. 1055, 113 S.Ct. 982, 122 L.Ed.2d 135 (1993). . Polk, 972 F.2d at 86 (eye contact); United States v. Terrazas-Carrasco, 861 F.2d 93, 94-95 (5th Cir.1988) (age, eye contact and body language); Clemons, 941 F.2d at 325 (age). . United States v. Lokey, 945 F.2d 825 (5th Cir.1991); United States v. Carter, 953 F.2d 1449 (5th Cir.), cert. denied, 504 U.S. 990, 112 S.Ct. 2980, 119 L.Ed.2d 598 (1992). . Id. . United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1804, 131 L.Ed.2d 730 (1995). . Lokey, 945 F.2d at 839. . 2 F.3d 1551 (11th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 2751, 129 L.Ed.2d 869 (1994). . The prosecutor made the following improper argument: I want to say a few words about — and I" }, { "docid": "22935049", "title": "", "text": "Exhibit 16.4 clearly shows that the shotgun was too long to fit in the safe. Therefore, it must have been next to the safe. . United States v. Mergerson, 4 F.3d 337, 349 (5th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994). . Id. . Id. . Although Ross presented evidence that he did not live at the home at the time of the search because he was having problems with his wife, the jury was free to disbelieve such evidence. . United States v. Capote-Capote, 946 F.2d 1100, 1102 (5th Cir.1991); cert. denied, 504 U.S. 942, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992). . United States v. Shabazz, 993 F.2d 431, 435 n. 3 (5th Cir.1993); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.1987) (enbanc). . Causey, 834 F.2d at 1184. . R. 25:161. . United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc), cert. denied, - U.S. -, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995). . Officer Oulliber testified that “99 out of 100 times [the inventory search is] done right on the street.\" This testimony implied that the Dallas Police Department had a policy of conducting inventory searches on impounded cars. . United States v. Rocha, 916 F.2d 219, 229 (5th Cir.1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991). . United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.1992). . Id. . Id. . Id. at 321. . Id. . Id. . Fed.R.CrimJP. 14 provides— If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of the counts, grant a severance of defendants or provide whatever other relief justice requires .... . Capote-Capote, 946 F.2d at 1104. . United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir.1993). . Id. . Id.; United States v. Harrelson, 754 F.2d 1153, 1175 (5th Cir.1985), cert. denied, 474 U.S. 908, 106 S.Ct. 277, 88" }, { "docid": "51647", "title": "", "text": "at issue and within Rule 701. B. Motions for Mistrial Defense counsel made several motions for mistrial during the course of trial. These motions concerned the admission of various evidence or the Government’s summation. “The decision whether to grant a mistrial is within the sound discretion of the trial court____” United States v. Saldarriaga, 987 F.2d 1526, 1531 (11th Cir.1993); see United States v. Clair, 934 F.2d 943, 945 (8th Cir.1991); United States v. Rocha, 916 F.2d 219, 234 (5th Cir.1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991); United States v. Bertoli, 854 F.Supp. 975, 1047 (D.N.J.1994), aff'd in part, sentencing vacated, 40 F.3d 1384 (3d Cir.1994); United States v. Crosley, 634 F.Supp. 28, 32 (E.D.Pa.1985), aff'd, 787 F.2d 584 (3d Cir.1986). “[T]he single most important factor in making [this] determination is the extent to which the defendant has been prejudiced.” United States v. Tarantino, 846 F.2d 1384, 1413 (D.C.Cir.1988); see United States v. Moore, 917 F.2d 215, 220 (6th Cir.1990), cert. denied, 499 U.S. 963, 111 S.Ct. 1590, 113 L.Ed.2d 654 (1991); United States v. Vastola, 899 F.2d 211, 235 (3d Cir.), vacated on other grounds, 497 U.S. 1001, 110 S.Ct. 3233, 111 L.Ed.2d 744 (1990); Bertoli, 854 F.Supp. at 1047; Brown v. Doe, 803 F.Supp. 932, 942 (S.D.N.Y.1992), aff'd, 2 F.3d 1236 (2d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1088, 127 L.Ed.2d 403 (1994). Even if a trial court improperly admits evidence, this “does not automatically mandate a new trial. There must be prejudice that affects a substantial right of the defendant.” United States v. Newby, 11 F.3d 1143, 1147 (3d Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 111, 130 L.Ed.2d 58 (1994). Moreover, under most circumstances, an instruction to the jury to disregard a question or response will cure any prejudice resulting from that question or response. United States v. Clair, 934 F.2d 943, 945 (8th Cir.1991); accord United States v. Canino, 949 F.2d 928, 937 (7th Cir.1991); United States v. Eyster, 948 F.2d 1196, 1214 (11th Cir.1991); Bertoli, 854 F.Supp. at 1047 n. 133 (opining that “if a" }, { "docid": "7330291", "title": "", "text": "U.S. 883, 112 S.Ct. 234, 116 L.Ed.2d 191 (1991). . United States v. Williams, 998 F.2d 258, 261 (5th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 940, 127 L.Ed.2d 230 (1994). . Id. at 261-62. . 18 U.S.C. § 1201(a)(1); see also, United States v. Jackson, 978 F.2d 903, 910 (5th Cir.1992), cert. denied, - U.S. -, -, 113 S.Ct. 2499, 3055, 124 L.Ed.2d 649 (1993). . United States v. Rocha, 916 F.2d 219, 237 (5th Cir.1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991). . Osborne was given a criminal history score of eight, placing him in category IV. This score was determined as follows: 2 points for indecency with a child 1 point for shoplifting two packages of Twinkies and Ding-Dongs 2 points for misdemeanor theft 2 points for committing the present offense while on probation 1 point for committing the present offense less than two years after being _ released from custody. 8 TOTAL. Osborne challenges the addition of two points for the misdemeanor theft conviction. . United States v. Howard, 991 F.2d 195, 199 (5th Cir.), cert. denied, - U.S. -, 114 S.Ct. 395, 126 L.Ed.2d 343 (1993). . Id. . Id. at 199. . United States v. Haymer, 995 F.2d 550, 552 (5th Cir.1993)." }, { "docid": "22935050", "title": "", "text": "100 times [the inventory search is] done right on the street.\" This testimony implied that the Dallas Police Department had a policy of conducting inventory searches on impounded cars. . United States v. Rocha, 916 F.2d 219, 229 (5th Cir.1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991). . United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.1992). . Id. . Id. . Id. at 321. . Id. . Id. . Fed.R.CrimJP. 14 provides— If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of the counts, grant a severance of defendants or provide whatever other relief justice requires .... . Capote-Capote, 946 F.2d at 1104. . United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir.1993). . Id. . Id.; United States v. Harrelson, 754 F.2d 1153, 1175 (5th Cir.1985), cert. denied, 474 U.S. 908, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985). . United States v. Rocha, 916 F.2d 219, 229 (5th Cir.1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991). . United States v. Barbontin, 907 F.2d 1494, 1497 (5th Cir.1990). . Id. . 11 F.3d 1225, 1236 (5th Cir.1994). . See United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.), cert. denied, - U.S. -, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994) (a court can make implicit findings as to contested facts so long as the reviewing court is not left to second-guess the basis for the sentencing decision). . 18 U.S.C. § 3553(a)(4); U.S.S.G. § 1B1.11(a). . United States v. Suarez, 911 F.2d 1016, 1021-22 (5th Cir.1990). . See United States v. Davern, 970 F.2d 1490, 1492 (6th Cir.1992) (en banc), cert. denied, - U.S. -, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993); United States v. Boshell, 952 F.2d 1101 (9th Cir.1991). . See U.S.S.G. § 2D1.1(c)(1)." }, { "docid": "7330290", "title": "", "text": "879 F.2d 743 (10th Cir.), cert. denied, 493 U.S. 957, 110 S.Ct. 373, 107 L.Ed.2d 359 (1989); Douglas v. Wainwright, 739 F.2d 531 (11th Cir.1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985). . Farmer, 32 F.3d at 371; Woods, 977 F.2d at 76; Sherlock, 962 F.2d at 1357-58; Nieto, 879 F.2d at 753-54; Douglas, 739 F.2d at 533. . We note that the government moved to close the proceedings pursuant to 18 U.S.C. § 3509(e), which authorizes the closing of a courtroom when a minor testifies, if the court determines on the record that “requiring the child to testify in open court would cause substantial psychological harm to the child or would result in the child's inability to effectively communicate.” The defendants do not challenge the court's application of the statute, but instead challenge only the constitutionality of the closure as a whole. We therefore do not decide if the court correcdy complied with the statute. . United States v. Ivy, 929 F.2d 147, 150 (5th Cir.), cert. denied, 502 U.S. 883, 112 S.Ct. 234, 116 L.Ed.2d 191 (1991). . United States v. Williams, 998 F.2d 258, 261 (5th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 940, 127 L.Ed.2d 230 (1994). . Id. at 261-62. . 18 U.S.C. § 1201(a)(1); see also, United States v. Jackson, 978 F.2d 903, 910 (5th Cir.1992), cert. denied, - U.S. -, -, 113 S.Ct. 2499, 3055, 124 L.Ed.2d 649 (1993). . United States v. Rocha, 916 F.2d 219, 237 (5th Cir.1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991). . Osborne was given a criminal history score of eight, placing him in category IV. This score was determined as follows: 2 points for indecency with a child 1 point for shoplifting two packages of Twinkies and Ding-Dongs 2 points for misdemeanor theft 2 points for committing the present offense while on probation 1 point for committing the present offense less than two years after being _ released from custody. 8 TOTAL. Osborne challenges the addition of two points for the misdemeanor theft conviction. ." }, { "docid": "23129862", "title": "", "text": "watching the house and stopping a departing automobile, possibly containing contraband, out of sight of the house. Under the circumstances, he did the best he could by stopping the car some distance from the house, but still in view to maintain his watch. Id. Aftér distinguishing those circumstances from situations in prior cases in which courts had previously found that law enforcement officers' deliberate conduct created exigent circumstances, the Socey court continued: Perhaps Detective Brenner could have pursued a different course, less likely to expose the police presence to the occupants in the house. But this calculation, made in hindsight, is not relevant to our inquiry. Moreover, the police should not be taxed with having failed to cover every eventuality and to arrange a sufficiently large dragnet to permit all persons leaving the house to be apprehended in perfect silence. As long as the police measures are not deliberately designed to invent exigent circumstances, we will not second-guess their effectiveness. Id. at 1449. . 788 F.2d 295 (5th Cir.1986). . 994 F.2d 244 (5th Cir.1993). . See Munoz-Guerra, 788 F.2d at 298-99 (\"Had the police’s necessary efforts to secure the premises been visible to the inhabitants or had there been reason to believe that someone in the condominium was in need of immediate succor, the government's position [that exigent circumstances justified the warrantless entry] would have merit.”). . Compare United States v. Curzi, 867 F.2d 36, 42-43 (1st Cir.1989) (noting that agents’ decision to reveal their presence \"was not prompted by any activity in the house or any exigent circumstances”) with United States v. Capote-Capote, 946 F.2d 1100, 1103 (5th Cir.1991) (\"This is not a case like Thompson or [U.S. v. ] Scheffer, [463 F.2d 567 (5th Cir.1972)] in which the government controlled the timing of the transaction. ...’’), cert. denied, 504 U.S. 942, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992). . United States v. Webster, 750 F.2d 307, 327 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985); see United States v. Hultgren, 713 F.2d 79, 88 (5th Cir.1983) (\"The fact that the exigency" }, { "docid": "3763551", "title": "", "text": "record evidence that Thomas was armed when he fled the Campbell Street residence. Although several officers who were involved in the initial chase testified, none of them reported seeing a firearm on Thomas. In addition, the confidential informant behind the Campbell Street warrant affidavit stated that the only firearm in the Campbell Street residence was the .38 caliber revolver which was seized after Thomas had fled the scene. Thus, police suspicion that Thomas was armed stemmed entirely from a computer report, several months old, implicating Thomas in an offense involving a firearm. See Note 1, supra. While the facts of this case do not require us to confront the issue, we observe that there is conflicting case law in this circuit regarding whether the presence of firearms alone creates exigent circumstances. Contrast Rico, 51 F.3d 495, 501 (exigent circumstances exist \"where firearms are present”), quoting United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir.1992), cert. denied, 510 U.S. 936, 114 S.Ct. 356, 126 L.Ed.2d 320 (1993), with Capote-Capote, 946 F.2d at 1103 (5th Cir.1991) (\"the mere presence of weapons ... does not alone create exigent circumstances”), citing Munoz-Guerra, 788 F.2d at 298 (listing cases). . Munoz-Guerra, 788 F.2d at 298. . United States v. Wilson, 36 F.3d 1298 (5th Cir.1994). Because we focus upon the defendants' custodial arrest we do not reach the question whether the police containment of 2302 Bleker Street at some point amounted to a search or seizure cognizable under the fourth amendment. . Our review of the record persuades that this justification for the arrests evolved during the defendants’ trial, with supporting testimony from Weston elicited by the leading questions from the prosecutor. Our holding in Causey, however, requires that we ignore this pretextual submission and confine our examination to the propri ety of the officers’ objective actions. United States v. Flores, 63 F.3d 1342 (5th Cir.1995). . Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See also Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) (the same probable cause standard governs arrests with or" } ]

[ { "docid": "3203298", "title": "", "text": "at 382. Nor does it establish deliberate indifference by the city. See DiRico, 404 F.3d at 469. 2. The mayor’s and the police commissioner’s liability As set forth above, the mayor and the police commissioner, like the city of Fajar-do, were held liable for failing to promulgate regulations regarding the proper use of deadly force, and for failing to adequately train the police in accordance with such regulations. They argue, similarly to Fa-jardo, that there was no evidence of deliberate indifference, nor was there evidence of a causal link between the allegedly deficient training and the injury to Whitfield. Like municipal liability, supervisory 'liability cannot be predicated on a respondeat superior theory. Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 48 (1st Cir.1999). Supervisors may only be held liable under § 1983 on the basis of their own acts or omissions. Id. Supervisory liability can be grounded on either the supervisor’s direct participation in the unconstitutional conduct, or through conduct that amounts to condonation or tacit authorization. See Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir.1999). Absent direct participation, a supervisor may only be held liable where “(1) the behavior of [his] subordinates results in a constitutional violation and (2) the [supervisor’s] action or inaction was ‘affirmatively link[ed]’ to the behavior in the sense that it could be characterized as ‘supervisory encouragement, condonation or acquiescence’ or ‘gross negligence ... amounting to deliberate indifference.’ ” Hegarty v. Somerset County, 53 F.3d 1367, 1379-80 (1st Cir. 1995) (quoting Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 902-03 (1st Cir.1988)). Our holding with respect to Fajardo’s municipal liability informs our analysis of the mayor’s and the police commissioner’s supervisory liability. Because the plaintiffs failed to provide sufficient evidence establishing that Fajardo’s police officers were inadequately trained, it follows that the plaintiffs failed to prove that the may- or and the police commissioner were deliberately, recklessly or callously indifferent to the constitutional rights of the citizens of Fajardo. The plaintiffs failed to show that there were any training deficiencies, much less that the mayor or the police commissioner, “should have known that there were" } ]

[ { "docid": "19006536", "title": "", "text": "respectively. 1. Supervisory Liability Under section 1983, a supervisory official may be held liable for his subordinates’ behavior only if (1) his subordinates’ behavior results in a constitutional violation; and (2) the official’s action or inaction was affirmatively linked to that behavior such that “it could be characterized as supervisory encouragement, condo-nation or acquiescence or gross negligence amounting to deliberate indifference.” Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir.2008) (quoting Lipsett v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir.1988)) (internal quotation marks omitted). Supervisory liability may be found either where the supervisor directly participated in the unconstitutional conduct or where the supervisor’s conduct amounts to “tacit authorization.” See Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir.1999). Plaintiffs must show that each individual defendant was involved personally in the deprivation of constitutional rights because no respondeat superi- or liability exists under section 1983. Pinto v. Nettleship, 737 F.2d 130, 132 (1st Cir.1984). A supervisor need not have actual knowledge of the offending conduct to be liable; a supervisor’s behavior may be deemed liable “by formulating a policy, or engaging in a custom, that leads to the challenged occurrence.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.1994). Thus, a supervisor may be liable “for the foreseeable consequences of such conduct in he would have known of it but for his deliberate indifference or wilful blindness, and if he has the power and authority to alleviate it.” Id. The defendants’ motion to dismiss asserts that plaintiffs do not state a claim of supervisory liability under section 1983 against Superintendent Toledo-Davila and police officer Donate and that the claims against defendant Toledo-Davila should be dismissed because he is protected by the non-respondeat superior liability doctrine. As mentioned above, all remaining named defendants joined the motion to dismiss without adding any analysis to these grounds for dismissal. Plaintiffs assert three causes of action which all fall under the umbrella of supervisory liability. These include claims that supervisors failed to supervise members of the PRPD properly; that supervisors permitted PRPD officers to engage in an unlawful practice or custom; that supervisors" }, { "docid": "17303552", "title": "", "text": "to the companionship and society of their children. Id. The Court declines, as it must, to follow Ninth Circuit precedent when the First Circuit Court of Appeals has spoken otherwise. Therefore, plaintiffs’ section 1983 action against the Supervisory Defendants in their personal capacity is DISMISSED WITH PREJUDICE, but plaintiffs section 1983 action, in their representative capacity, survives. III. Supervisory Liability Under Section 1983 Section 1983 is a vehicle for asserting rights conferred by the United States Constitution against state officers. Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). To state a claim pursuant to section 1983, plaintiffs must plausibly plead that (1) the Supervisory Defendants’ conduct denied Caceres’ Constitutional rights while (2) acting “under color of state law.” Soto, 103 F.3d at 1056; Moreno-Perez v. Toledo-Davila, 764 F.Supp.2d 351, 359 (D.P.R.2011). The Supervisory Defendants do not dispute the second element: that they were acting under the color of state law. Therefore, the issue in dispute is the first element: whether plaintiffs have sufficiently pled that the Supervisory Defendants’ conduct denied Caceres’ constitutional rights guaranteed by the Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution. A court will find supervisory liability where (a) the supervisor’s subordinates violated the constitution and (b) the supervisor’s acts or omissions were “affirmatively linked” to the behavior so that “it could be characterized as supervisory encouragement, condonation or acquiescence or gross negligence amounting to deliberate indifference.” Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir.2008) (quoting Lipsett v. University of Puerto Rico, 864 F.2d 881, 902 (1st Cir.1988)). Thus, a supervisor may not be held liable for a subordinate’s violation of Constitutional rights under a theory of respondeat superior. Iqbal, 129 S.Ct. at 1952 (“Absent vicarious liability, each government official, his or her title notwithstanding, is liable for his or her own misconduct.”). Rather, supervisory liability must be predicated on a supervisor’s own acts or omissions. Colon-Andino v. Toledo-Davila, 634 F.Supp.2d 220, 232 (2009) (citing Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir.1999) (“Supervisory liability may be found either where the supervisor directly participated in the unconstitutional conduct" }, { "docid": "20717971", "title": "", "text": "complaints were filed against the officer. The defendant Pedro Toledo-Dávila argues that he can only be held liable for his personal actions under the theory of supervisory liability and that he cannot be held liable for merely negligent acts. He notes that the record reflects that he had no involvement in the records produced as exhibits and that there is no fact as to any act or omission on his part which would expose him to supervisory liability. Because of the lack of such evidence, the complaint should arguably be dismissed, particularly since there is no witness showing any affirmative link between any act or omission on his part and the civil rights violation. Plaintiff argues, contrariwise, that there exists a known history of widespread abuse and that the records reflect five violations, in 1996 (verbal abuse), 1998 (verbal abuse), 1999 (domestic abuse), 2000 (verbal abuse to fellow officer) and 2001 (insubordination). Plaintiff argues that it was clear that officer Lara-Ramos could potentially commit civil rights violations. According to plaintiff, the complaints reflect deliberate indifference on the part of the defendant Pedro Toledo-Dávila. To demonstrate “deliberate indifference” a plaintiff must show causation by establishing (A) a grave risk of harm, (B) the defendant’s knowledge, actual or constructive, of that risk, and (C) his failure to take easily available measures to address the risk. Camilo-Robles v. Hoyos, 151 F.3d at 7; see Manarite v. City of Springfield, 957 F.2d 953, 956 (1st Cir.1992). In other words, “[ajbsent [direct] participation in the challenged conduct, a supervisor ‘can be held liable ... [only] if (1) the behavior of [his] subordinates results in a constitutional violation and (2) the [supervisor’s] action or inaction was ‘affirmatively link[ed]’ to the behavior in the sense that it could be characterized as ‘supervisory encouragement, condonation or acquiescence’ or ‘gross negligence ... amounting to deliberate indifference.’ ” Hegarty v. Somerset County, 53 F.3d at 1379-80 (quoting Lipsett v. U.P.R., 864 F.2d 881, 902-03 (1st Cir.1988)) ; see Whitfield v. Meléndez-Rivera, 431 F.3d 1, 14 (1st Cir.2005); see also Maldonado v. Fontanes, 568 F.3d 263, 275 (1st Cir.2009). Plaintiff has" }, { "docid": "17303553", "title": "", "text": "denied Caceres’ constitutional rights guaranteed by the Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution. A court will find supervisory liability where (a) the supervisor’s subordinates violated the constitution and (b) the supervisor’s acts or omissions were “affirmatively linked” to the behavior so that “it could be characterized as supervisory encouragement, condonation or acquiescence or gross negligence amounting to deliberate indifference.” Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir.2008) (quoting Lipsett v. University of Puerto Rico, 864 F.2d 881, 902 (1st Cir.1988)). Thus, a supervisor may not be held liable for a subordinate’s violation of Constitutional rights under a theory of respondeat superior. Iqbal, 129 S.Ct. at 1952 (“Absent vicarious liability, each government official, his or her title notwithstanding, is liable for his or her own misconduct.”). Rather, supervisory liability must be predicated on a supervisor’s own acts or omissions. Colon-Andino v. Toledo-Davila, 634 F.Supp.2d 220, 232 (2009) (citing Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir.1999) (“Supervisory liability may be found either where the supervisor directly participated in the unconstitutional conduct or where his or her conduct amounts to tacit authorization.”)); Aponte Matos v. Toledo Davila, 135 F.3d 182, 192 (1st Cir.1998) (internal citations omitted). “Supervisory liability under a theory of deliberate indifference ‘will be found only if it would be manifest to any reasonable official that his conduct was very likely to violate an individual’s constitutional rights.’ ” Maldonado v. Fontanes, 568 F.3d 263, 275 (2009) (internal citations omitted). Liability will be found even if the supervisor does not have actual knowledge of the unconstitutional behavior. See, Colon-Andino, 634 F.Supp.2d at 232 (citing Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.1994)). Accordingly, “liability attaches if a responsible official supervises, trains, or hires a subordinate with deliberate indifference toward the possibility that deficient performance of the task eventually may contribute to a civil rights deprivation.” Camilo-Robles, 175 F.3d at 44 (internal citations omitted). “Under such a theory, a supervisor may be brought to book even though his actions have not directly abridged someone’s rights; it is enough that he has created or overlooked a clear" }, { "docid": "538786", "title": "", "text": "other federal agencies. Drawing all reasonable inferences in Plaintiffs’ favor as this Court must do here, leads us to conclude for purposes of this motion to dismiss that Natal’s transfer constituted a demotion. Thus, Plaintiffs’ allegation that Natal was transferred to the Field Operations division of the PRPD is sufficient at the motion to dismiss stage to show that he was deprived of a protected property interest. Next, this Court must determine whether Plaintiffs have satisfied the notice pleading requirements with regards to their allegation that Defendants violated Natal’s property interest without a constitutionally adequate process. This Court finds that Plaintiffs have satisfied the burden imposed by this standard. Specifically, Plaintiffs averred that Natal was “merely” informed of his transfer. Therefore, this Court accepts for purposes of this analysis that Plaintiff was deprived of his property interest without a constitutionally adequate process. Plaintiffs have proffered an adequate Fourteenth Amendment claim. Now, this Court must determine whether Plaintiffs have adequately alleged that Defendants violated Natal’s Fourteenth Amendment Due Process right. In making this determination, it is important to note that Defendants are both supervisors in the PRPD. Under section 1983, supervisory liability can only be grounded on the supervisor’s own acts or omissions either through the supervisor’s direct participation in the unconstitutional conduct, or through conduct that amounts to condonation or tacit authorization. Whitfield v. Melendez-Rivera, 431 F.3d 1, 14 (1st Cir.2005) (internal citation omitted). “Absent direct participation, a supervisor may only be held liable where (1) the behavior of [his] subordinates results in a constitutional violation and (2) the [supervisor’s] action or inaction was affirmatively linked to the behavior in the sense that it could be characterized as supervisory encouragement, condonation or acquiescence or gross negligence ... amounting to deliberate indifference.” Id. (internal citations and quotation marks omitted). A supervisor’s action or inaction amounting to deliberate indifference will be found only if “it would be manifest to any reasonable official that his conduct was very likely to violate an individual’s constitutional rights.” Germany v. Vance, 868 F.2d 9, 18 (1st Cir.1989). “The ‘affirmative link’ requirement contemplates proof that the supervisor’s" }, { "docid": "8652073", "title": "", "text": "under a theory of respondeat superior.” Iqbal, 129 S.Ct. at 1948. Supervisors may only be held liable under § 1983 on the basis of their own acts or omissions. Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 48 (1st Cir.1999). Hence, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution Iqbal, 129 S.Ct. at 1948. Supervisory liability can be grounded on either the supervisor’s direct participation in the unconstitutional conduct, or through conduct that amounts to condonation or tacit authorization. See Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir.1999). For purposes of liability pursuant to § 1983, a supervisor is defined loosely to encompass a wide range of officials who are themselves removed from the perpetration of the rights-violating behavior. Camilo-Robles v. Hoyos, 151 F.3d 1, 6-7 (1st Cir.1998). Basically, a supervisor can be held liable under § 1983 if she formulates a policy or engages in a practice that leads to a civil rights violation committed by another. Id. at 7. Absent direct participation, a supervisor may be held liable under § 1983 in either his official or personal capacity for the behavior of his subordinates if both: (1) the behavior of her subordinates results in a constitutional violation and (2) the supervisor’s action or inaction was affirmatively linked to the behavior in the sense that it could be characterized as supervisory encouragement, condonation or acquiescence or gross negligence amounting to deliberate indifference. Whitfield v. Melendez-Rivera, 431 F.3d 1, 14 (1st Cir.2005) (internal citation and quotation marks omitted); Rodriguez-Oquendo v. Toledo-Davila, 39 F.Supp.2d 127, 134 (D.P.R.1999). First, we address whether Plaintiffs properly pled that Muriel politically discriminated against Torres-Soto. In the complaint, Plaintiffs did not allege that Muriel was involved in the non-renewal of their contracts. Hence, Plaintiffs have failed to allege that there is a causal connection between Muriel’s conduct and the alleged deprivation of their rights under the First Amendment. Consequently, Alvarez-Rubio cannot be held liable for Muriel’s acts. As a result, Torres-Soto’s claims under the First Amendment must be dismissed. Diaz-Afanador has properly plead all four elements of" }, { "docid": "21414949", "title": "", "text": "two elements: first, the plaintiff must show that one of the supervisor’s subordinates abridged the, plaintiffs constitutional rights. See Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir.2008). Second, the plaintiff must show that “the [supervisor]^ action or inaction was affirmatively] lmk[ed] to that behavior in the sense that it could be characterized as supervisory encouragement, condonation, or acquiescence or gross negligence amounting to deliberate indifference.” Id. (alterations in original) (quoting Lipsett v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir.1988)). Supervisory liability is sui generis. Thus, a supervisor may not be held liable under section 1988 on the tort theory of respondeat superior, nor can a supervisor’s section 1983 liability rest solely on his position of authority. See Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10, 19 (1st Cir.2014). This does not mean, however, that for section 1983 liability to attach, a supervisor must directly engage in a ■ subordinate’s unconstitutional behavior. See Camilo-Robles v. Hoyos, 151 F.3d 1, 6-7 (1st Cir.1998). Even so, the supervisor’s liability must be premised on his own acts or omissions. See Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.1989); Figueroa v. Aponte-Roque, 864 F.2d 947, 953 (1st Cir.1989). Mere negligence will not suffice: the supervisor’s conduct must evince “reckless or callous indifference to the constitutional rights of others.” Febus-Rodríguez v. Betancourt-Lebrón, 14 F.3d 87, 92 (1st Cir.1994). If a plaintiff relies on a theory of deliberate indifference, a three-part inquiry must be undertaken. See Ramírez-Lluveras, 759 F.3d at 20. In the course of that inquiry, the plaintiff must show “(1) ‘that the officials had knowledge of facts,’ from which (2) ‘the officials] can draw the inference’ (3) ‘that a substantial risk of serious harm exists.’” Id. (alteration in original) (quoting Ruiz-Rosa v. Rullán, 485 F.3d 150, 157 (1st Cir.2007)). “[Deliberate indifference alone does not equate with supervisory liability.” Figueroa-Torres v. Toledo-Dávila, 232 F.3d 270, 279 (1st Cir.2000). (alteration in original) (quoting Camilo-Robles, 151 F.3d at 7). Causation remains an essential element, and the causal link between a supervisor’s conduct and the constitutional violation must be solid. See Ramírez-Lluveras, 759 F.3d at 19. This" }, { "docid": "22144825", "title": "", "text": "liability for alleged substantive due process violations requires a showing of “supervisory encouragement, condonation or acquiescence or gross negligence amounting to deliberate indifference” (quoting Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir.2008))). Indeed, supervisory liability lies only where an “ ‘affirmative link’ between the behavior of a subordinate and the action or inaction of his supervisor” exists such that “ ‘the supervisor’s conduct led inexorably to the constitutional violation.’ ” Pineda, 533 F.3d at 54 (quoting Hegarty v. Somerset County, 53 F.3d 1367, 1380 (1st Cir.1995)). Further, supervisory liability under a theory of deliberate indifference “will be found only if it would be manifest to any reasonable official that his conduct was very likely to violate an individual’s constitutional rights.” Id. (quoting Hegarty, 53 F.3d at 1380) (internal quotation marks omitted). Here, the Mayor’s promulgation of a pet policy that was silent as to the manner in which the pets were to be collected and disposed of, coupled with his mere presence at one of the raids, is insufficient to create the affirmative link necessary for a finding of supervisory liability, even under a theory of deliberate indifference. The Mayor is entitled to qualified immunity on the pleadings on the Fourteenth Amendment substantive due process claims. We note that the Mayor has denied many of the factual allegations asserted in the complaint. Nothing in this opinion precludes the Mayor from seeking qualified immunity on a further developed record at a later stage. IV. The district court’s order denying the Mayor qualified immunity as to the plaintiffs’ Fourth Amendment and Fourteenth Amendment procedural due process claims is affirmed. The district court’s order denying the Mayor qualified immunity as to the plaintiffs’ Fourteenth Amendment substantive due process claims is reversed, and the plaintiffs’ Fourteenth Amendment substantive due process claims are dismissed. Each party shall bear its own costs. . The Mayor also moved to dismiss for failure to state a claim, which the district court granted as to a few claims, but denied as to the Fourth and Fourteenth Amendment claims and pendent state law claims. That order was not appealable" }, { "docid": "10328037", "title": "", "text": "rather than a mere defense to liability .... As we recently noted, “[b]efore this court — or any court — can adjudicate the merits” of Plaintiffs’ claims, they “must overcome the bar of qualified immunity.” Once raised, a plaintiff has the burden to rebut the qualified immunity defense “by establishing that the official’s allegedly wrongful conduct violated clearly established law. We do not require that an official demonstrate , that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.” Qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” B Plaintiffs have alleged the violation of the constitutional right to be free of excessive force under the Fourth Amendment. Here, Plaintiffs seek to hold Ap pellants Wallace and Shockley liable as supervisors of Hill. Supervisory officials cannot be held liable under section 1983 for the actions of subordinates, such as Hill, on any theory of vicarious or respon-deat superior liability. Rather, Plaintiffs must show that the conduct of the supervisors denied Davis his constitutional rights. When, as here, a plaintiff alleges a failure to train or supervise, “the plaintiff must show that: (1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train or supervise and the violation of the plaintiffs rights; and (3) the failure to train or supervise amounts to deliberate indifference.” With respect to the third prong, we have on several occasions reversed a district court’s denial of qualified immunity, persuaded that support was lacking for a conclusion of deliberate indifference on the part of a supervisor. “ ‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” “For an official to act with deliberate indifference, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Deliberate indifference requires a showing of more than negligence or even gross negligence." }, { "docid": "13070052", "title": "", "text": "which the Court will discuss in more detail, Plaintiff has obtained all of the information necessary to establish certain essential elements of his claim against Toledo. The discovery Plaintiff now seeks — regarding the Police Department’s hiring and training practices and procedures — is exactly the costly and potentially unnecessary discovery that Plaintiff expressed a desire (shared by Defendants and the Court) to avoid at the ISC. This information is of no moment should other aspects of Plaintiffs case be unsupportable. In sum, contrary to Plaintiffs contention, this case is ripe for sua sponte dismissal. III. SUPERVISORY LIABILITY UNDER 42 U.S.C. § 1983 Under § 1983, liability may attach to supervisors based on the actions of subordinates, but only where an act or omission of the supervisor himself can be affirmatively linked to the subordinate’s behavior. Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996): Supervisory liability under 42 U.S.C. § 1983 cannot be predicated on the doctrine of respondeat superior. A supervisor can be held liable only on the basis of her own acts or omissions. As we have explained: “[A] state official can be held liable if (1) the behavior of [a] subordinate results in a constitutional violation and (2) the official’s action or inaction was affirmatively linked to that behavior in that it could be characterized as supervisory encouragement, condonation, or acquiescence or gross negligence amounting to deliberate indifference.” More recently we have noted that an indifference that rises to the level of being deliberate, reckless or callous, suffices to establish liability under § 1983. The requirement of an affirmative link between the behavior of a subordinate and the action or inaction of defendant official contemplates proof that the supervisor’s conduct led inexorably to the constitutional violation. [Citations and internal quotes omitted]. Since the First Circuit upheld a substantial jury verdict against former Superintendent of the Puerto Rico Police Department Desidero Cartagena, Gutiérrez-Rodríguez v. Cartagena, 882 F.2d 553 (1st Cir.1989) (upholding a verdict of over five million dollars in a police brutality case), nearly every (if not every) complaint filed in Puerto Rico seeking redress under §" }, { "docid": "22144824", "title": "", "text": "between possibility and plausibility of ‘entitlement to relief” on the larger substantive due process claim. Iqbal, at 1960 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955) (internal quotation marks omitted). A government official who himself inflicts truly outrageous, uncivilized, and intolerable harm on a person or his property may be liable; but there is no claim in this complaint the Mayor himself inflicted such harm. Cf. Velez-Diaz v. Vega-Irizarry, 421 F.3d 71, 79 (1st Cir.2005) (granting qualified immunity where there was no allegation that the government actors were directly involved in the offensive conduct). The allegations against the Mayor thus do not establish that his involvement was sufficiently direct to hold him liable for violations of the plaintiffs’ substantive due process rights. Nor do the allegations make out a viable case for supervisory liability, such that the Mayor could, on these pleadings, be held responsible for violations of the plaintiffs’ substantive due process rights committed by subordinate municipal employees or workers from ACS. See Estate of Bennett, 548 F.3d at 176-77 (explaining that supervisory liability for alleged substantive due process violations requires a showing of “supervisory encouragement, condonation or acquiescence or gross negligence amounting to deliberate indifference” (quoting Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir.2008))). Indeed, supervisory liability lies only where an “ ‘affirmative link’ between the behavior of a subordinate and the action or inaction of his supervisor” exists such that “ ‘the supervisor’s conduct led inexorably to the constitutional violation.’ ” Pineda, 533 F.3d at 54 (quoting Hegarty v. Somerset County, 53 F.3d 1367, 1380 (1st Cir.1995)). Further, supervisory liability under a theory of deliberate indifference “will be found only if it would be manifest to any reasonable official that his conduct was very likely to violate an individual’s constitutional rights.” Id. (quoting Hegarty, 53 F.3d at 1380) (internal quotation marks omitted). Here, the Mayor’s promulgation of a pet policy that was silent as to the manner in which the pets were to be collected and disposed of, coupled with his mere presence at one of the raids, is insufficient to create the affirmative link" }, { "docid": "20107546", "title": "", "text": "subordinates’ behavior only if (1) his subordinates’ behavior results in a constitutional violation; and (2) the official’s action or inaction was affirmatively linked to that behavior such that “it could be characterized as supervisory encouragement, condo-nation or acquiescence or gross negligence amounting to deliberate indifference.” Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir.2008) (quoting Lipsett v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir.1988)) (internal quotation marks omitted). Supervisory liability may be found either where the supervisor directly participated in the unconstitutional conduct or where the supervisor’s conduct amounts to “tacit authorization.” See Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir.1999). Plaintiffs must show that each individual defendant was involved personally in the deprivation of constitutional rights because no respondeat superior liability exists under section 1983. Pinto v. Nettleship, 737 F.2d 130, 132 (1st Cir.1984). A supervisor need not have actual knowledge of the offending conduct to be liable; a supervisor’s behavior may be deemed liable “by formulating a policy, or engaging in a custom, that leads to the challenged occurrence.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.1994). Thus, a supervisor may be liable “for the foreseeable consequences of such conduct if he would have known of it but for his deliberate indifference or wilful blindness, and if he has the power and authority to alleviate it.” Id. Plaintiffs assert three causes of action which all fall under the umbrella of supervisory liability: (1) supervisors Toledo-Davila and Carbo-Marty knew or should have known of the propensity for violence and fabrication of cases against innocent citizens of police officers Muniz-Tirado, Ruperto-Torres and Cortes-Caban and failed to supervise them properly; (2) supervisors Toledo-Davila and Carbo-Marty failed to take remedial action against rogue police officers; and (3) supervisors Toledo-Davila and Carbo-Marty failed to train and retrain the offending officers properly. The Court addresses the allegations of supervisory liability as to each defendant supervisor. a) Pedro Toledo-Davila Defendant Toledo-Davila was, at times relevant to this case, the Superintendent of the Puerto Rico Police Department. Plaintiffs allege that defendant Toledo-Davila “knew or should have known” of the “aggresive behavior and" }, { "docid": "19006535", "title": "", "text": "553, 558 (1st Cir.1989). Hence, to succeed in a section 1983 action, plaintiffs must prove that defendants actions were a cause in fact or a proximate cause of their injury. See Collins v. City Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Related to section 1983, defendants argue that (1) the plaintiffs have failed to state a claim against defendant Donate; (2) claims against defendant Toledo-Davila should be dismissed because he is protected by the non-respondeat superior liability doctrine; (3) plaintiffs do not state a claim of supervisory liability under section 1983 against defendants Toledo-Davila and Donate; (4) plaintiffs failed to state a claim of substantive due process under the Fourteenth Amendment; and (5) plaintiffs failed to state a claim under the Fifth Amendment. Because many of these arguments are redundant or overlap, the Court addresses these grounds for dismissal by examining first the issue of supervisory liability under section 1983 and, second, whether plaintiffs have properly alleged claims under section 1983 for violations of the Fourth, Fifth and Fourteenth Amendments, respectively. 1. Supervisory Liability Under section 1983, a supervisory official may be held liable for his subordinates’ behavior only if (1) his subordinates’ behavior results in a constitutional violation; and (2) the official’s action or inaction was affirmatively linked to that behavior such that “it could be characterized as supervisory encouragement, condo-nation or acquiescence or gross negligence amounting to deliberate indifference.” Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir.2008) (quoting Lipsett v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir.1988)) (internal quotation marks omitted). Supervisory liability may be found either where the supervisor directly participated in the unconstitutional conduct or where the supervisor’s conduct amounts to “tacit authorization.” See Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir.1999). Plaintiffs must show that each individual defendant was involved personally in the deprivation of constitutional rights because no respondeat superi- or liability exists under section 1983. Pinto v. Nettleship, 737 F.2d 130, 132 (1st Cir.1984). A supervisor need not have actual knowledge of the offending conduct to be liable; a supervisor’s behavior may be deemed" }, { "docid": "2435350", "title": "", "text": "a gun. Id. at 4. These facts, coupled with Plaintiffs’ contentions, create a issues of material fact as to whether there was a realistic opportunity for the officers to intervene. See Anderson v. Branen, 17 F.3d 552, 557 (2nd Cir.1994) (“Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise”). Because a question exists as to whether there was sufficient opportunity for Sgt. Colon and Officer Conde to intervene, the court DENIES summary judgment with respect to the liability of Sgt. Colon and Officer Conde. C. Municipal and Supervisory Liability In cases where the plaintiff alleges that a supervisor’s conduct has caused a constitutional deprivation, the Supreme Court has firmly rejected respondeat superior as a basis for the liability of supervisory officials. See Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir.1985) (citing Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Plaintiffs asserting such a claim must show that each defendants’ acts or omissions directly caused the deprivation of the rights at issue. See Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir.2005)(citing Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 91-92 (1st Cir.1994)). Absent direct participation, a supervisor may only be held liable where “(1) the behavior of his subordinates results in a constitutional violation, and (2) the supervisor’s action or inaction was affirmatively linked to that behavior in the sense that it could be characterized as supervisory encouragement, condonation or acquiescence or gross negligence amounting to deliberate indifference.” Pineda v. Toomey, 533 F.3d 50 (1st Cir.2008) (internal quotations omitted). “Allegations that a supervisor failed to train his subordinate officers and that he should be held liable for such failure, without identi fying the factual underpinnings of such failure, nor identifying the causal nexus between the failed training and the subordinate’s misconduct, are not enough to sustain a claim of liability under Section 1983.” Rossi-Cortes v. Toledo-Rivera, 540 F.Supp.2d 318, 324" }, { "docid": "22382215", "title": "", "text": "in order to hold the supervisory defendant in that case, a police chief, liable under section 1983, the plaintiff had to show that (1) “the conduct complained of was committed by a person acting under color of state law; and (2) [that] this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Id. at 819 (citation omitted). The second inquiry, we went on to say, has “two distinct elements,” namely whether there was a deprivation and whether the defendant’s conduct caused this deprivation. Id. We concluded that the plaintiff could establish causation by showing a “pattern of police violence so striking as to allow an inference of supervisory encouragement, condonation, or even acquiescence,” id. at 820 (footnote and citation omitted); or by showing “gross negligence [of the defendant] amounting to deliberate indifference....” Id. See also Kibbe v. City of Springfield, 777 F.2d 801 (1st Cir.1985) (harm allegedly caused by policy of gross negligence in police training can meet standard of causation under 42 U.S.C. § 1983), cert. dismissed, 480 U.S. 257, 107 S.Ct. 1114, 94 L.Ed.2d 293 (1987). From this body of case law we conclude that a state official, sued under section 1983 in his or her official or individual capacity, can be held liable for the behavior of his or her subordinates if (1) the behavior of such subordinates results in a constitutional violation and (2) the official’s action or inaction was “affirmatively] link[ed],” Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985), to that behavior in the sense that it could be characterized as “supervisory encouragement, condonation, or acquiescence” or “gross negligence amounting to deliberate indifference.” See Bohen, 799 F.2d at 1189 (entity may be liable under section 1983 for “ ‘informal actions ... which even tacitly [encourage] conduct depriving citizens of their constitutionally protected rights’ ”) (citation omitted). An important factor in making the determination of liability is whether the official was put on some kind of notice of the alleged violations, for one cannot make a “deliberate” or" }, { "docid": "538787", "title": "", "text": "important to note that Defendants are both supervisors in the PRPD. Under section 1983, supervisory liability can only be grounded on the supervisor’s own acts or omissions either through the supervisor’s direct participation in the unconstitutional conduct, or through conduct that amounts to condonation or tacit authorization. Whitfield v. Melendez-Rivera, 431 F.3d 1, 14 (1st Cir.2005) (internal citation omitted). “Absent direct participation, a supervisor may only be held liable where (1) the behavior of [his] subordinates results in a constitutional violation and (2) the [supervisor’s] action or inaction was affirmatively linked to the behavior in the sense that it could be characterized as supervisory encouragement, condonation or acquiescence or gross negligence ... amounting to deliberate indifference.” Id. (internal citations and quotation marks omitted). A supervisor’s action or inaction amounting to deliberate indifference will be found only if “it would be manifest to any reasonable official that his conduct was very likely to violate an individual’s constitutional rights.” Germany v. Vance, 868 F.2d 9, 18 (1st Cir.1989). “The ‘affirmative link’ requirement contemplates proof that the supervisor’s conduct led inexorably to the constitutional violation.” Hegarty v. Somerset County, 53 F.3d 1367, 1380 (1st Cir.1995) (internal citations and quotation marks omitted). In the complaint, Plaintiffs alleged that Caldero was the one who informed Natal that he would no longer be assigned to detective work. Furthermore, Plaintiffs averred that Caldero made this decision because he determined that Natal was corrupt. Taking these allegations as true and drawing all inferences in Plaintiffs’ favor leads us to conclude that Plaintiffs have satisfied the notice pleading requirement as to Caldero. The allegations contained in the complaint inform Caldero that his direct participation in Natal’s transfer is the basis of Plaintiffs’ Fourteenth Amendment violation claim against him. Consequently, Plaintiffs’ Fourteenth Amendment claim against Caldero will not be dismissed. However, the complaint is completely devoid of any allegations as to Morales. Basically, the only allegation contained in the complaint as to Morales is that he is the Interim Director of the Joint Task Force Unit of the PRPD. Hence, Plaintiffs have not proffered allegations which give notice to Morales" }, { "docid": "11800705", "title": "", "text": "physical attack and capture by police officers. We believe that any reasonable, similarly-situated officer would understand that beating and arresting a civilian for no legitimate reason is a violation of that victim’s constitutional civil rights. Accordingly, we find that Defendant officers are not entitled to qualified immunity. C. Defendant Toledo Defendant Toledo argues that he cannot be held liable in this claim because he (1) was not personally involved in the acts which Plaintiffs allege, and (2) lacks supervisory liability. A “supervisor” for purposes of liability under section 1983 is “defined loosely to encompass a wide range of officials who are themselves removed from the perpetration of the rights-violating behavior.” Camilo-Robles v. Hoyos, 151 F.3d 1, 6-7 (1st Cir.1998) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). While supervisory liability in section 1983 cases cannot be predicated upon a theory of respondent superior, a supervisor can be found liable if he formulates a policy or engages in a practice that leads to a civil rights violation committed by another. Id.; Seekamp v. Michaud, 109 F.3d 802, 808 (1st Cir.1997). In other words, a state official may be held liable under section 1983 in either his official or personal capacity for the behavior of his subordinates if both (1) the behavior of the subordinates results in a constitutional violation, and (2) the official’s action was affirmatively linked to that behavior such that it could be characterized as “supervisory encouragement, condonation, or acquiescence” or “gross negligence amounting to deliberate indifference.” City of Oklahoma v. Tuttle, 471 U.S. at 823, 105 S.Ct. 2427; Lipsett, 864 F.2d at 902. While an important factor in determining supervisory responsibility is whether the supervisor had notice of behavior that was likely to result in a violation of constitutional rights, Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 93 (1st Cir.1994), actual knowledge of the offending behavior is not required. A supervisor “may be liable for the foreseeable consequences of such [offending] conduct if he would have known of it but for his deliberate indifference or willful blindness.” Maldonado-Denis v." }, { "docid": "4099995", "title": "", "text": "Prison officials have an obligation to protect prisoners from violence inflicted upon them by other prisoners. “It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim’s safety.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994). Prison officials must “take reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984). Only “[a] prison official’s deliberate indifference to a known, substantial risk of serious harm to an inmate violates the Eighth Amendment.” Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1028 (11th Cir.2001) (en banc). Thus, a prisoner-plaintiff must first demonstrate “an objectively substantial risk of serious harm to prisoners.” Id. at 1028-29. Then, the plaintiff must show that the defendant was deliberately indifferent, which requires the following: “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.” Goodman v. Kimbrough, 718 F.3d 1325, 1331-32 (11th Cir.2013) (internal quotation marks omitted). “It is well established in this Circuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352,1360 (11th Cir.2003) (internal quotation marks omitted). Therefore, a plaintiff seeking to hold a supervisor liable for constitutional violations must show that the supervisor either participated directly in the unconstitutional conduct or that a causal connection exists between the supervisor’s actions and the alleged constitutional violation. Id. The necessary causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so. Alternatively, the causal connection may be established when a supervisor’s custom or policy ... result[s] in deliberate indifference to constitutional rights or when facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act" }, { "docid": "22574824", "title": "", "text": "action or inaction was affirmatively linkfed] to the behavior in the sense that it could be characterized as supervisory encouragement, condonation or acquiescence or gross negligence ... amounting to deliberate indifference.” (internal quotations omitted)); Hernandez, 341 F.3d at 145 (\"The liability of a supervisor under § 1983 can be shown [by] .. .:(1) actual direct participation in the constitutional violation, (2) failure to remedy a wrong after being informed through a report or appeal, (3) creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue, (4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act on information indicating that unconstitutional acts were occurring.”); Randall v. Prince George’s County, 302 F.3d 188, 206 (4th Cir.2002) (stating that \"supervisory liability may attach under § 1983 if a plaintiff can establish .... (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices; and (3) that there was an affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff” (internal quotations omitted)); Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d Cir. 1995) (explaining that an individual may be liable under § 1983 if he participated in violating the plaintiff's rights, or he directed others to violate them, or as a supervisor he had knowledge of and acquiesced in his subordinates' violations); Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir.1988) (concluding that to establish supervisory liability under § 1983 \"[t]he supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference”). . We recognize that some panels of this Court after Iqbal, but without" }, { "docid": "2087463", "title": "", "text": "S.Ct. 1694, 85 L.Ed.2d 1 (1985). Plaintiffs’ claims against Toledo Dávila are based on supervisory liability. “Supervisory liability may not be predicated upon a theory of respondeat superior.” Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996) (citing Gutiérrez-Rodríguez v. Cartagena, 882 F.2d at 562). The supervisor must be sued in his individual capacity “for his own acts or omissions.” Id. (citing Figueroa v. Aponte-Roque, 864 F.2d 947, 958 (1st Cir.1989)). Moreover, supervisory liability under § 1983 cannot be premised on mere negligence. Febus-Rodríguez v. Betancourt-Lebrón, 14 F.3d 87, 92 (1st Cir.1994). “Absent participation in the challenged conduct, a supervisor can be held liable only if (1) the behavior of his subordinates results in a constitutional violation and (2) the supervisor’s action or inaction was affirmatively linked to the behavior in the sense that it could be characterized as supervisory encouragement, con-donation or acquiescence or gross negligence of the supervisor amounting to deliberate indifference.” Hegarty v. Somerset County, 53 F.3d 1367, 1379 (1st Cir.1995) (internal quotations and ellipses omitted) (citing Lipsett v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir. 1988)), cert. denied, — U.S. —, 116 S.Ct. 675, 133 L.Ed.2d 524 (1995). The First Circuit has more recently added that “indifference that rises to the level of being deliberate, reckless or callous, suffices to establish liability under § 1983.” Sánchez, 101 F.3d at 227. Deliberate, reckless, or callous “indifference will be found only if it would be manifest to any reasonable official that his conduct was very likely to violate an individual’s constitutional rights.”, Hegarty, 53 F.3d at 1380 (emphasis added); Febus, 14 F.3d at 92. “The ‘affirmative link’ requirement contemplates proof that the supervisor’s conduct led inexorably to the constitutional violation.” Hegarty, 53 F.3d at 1380. If codefendant Toledo Dávila’s knew or should have known that the failure to discipline, supervise and control Officer Medina Vargas was very likely to lead to his.alleged excessive use of force, Toledo Dávila may be liable under § 1983. Although plaintiffs have not yet produced evidence that the need for more effective supervision was so obvious, and the inadequacy so likely" } ]

[ { "docid": "4864745", "title": "", "text": "Merced, 603 F.3d 203, 213 (3d Cir.2010) (citation omitted). Our review for reasonableness proceeds in two stages: (1) “First, we ensure that the district court committed no ‘significant procedural error,’ ‘such as failing to calculate (or improperly calculating) the Guidelines rage, treating the Guidelines as mandatory, failing to 'consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence’ ” and (2) “if the district court’s procedures are sound, we proceed to examine the substantive reasonableness of the sentence.” Id. at 214 (quoting United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009); Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)) (citation omitted); United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008) (“[W]e are to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way.”). At both the procedural and substantive stages, this Court reviews for abuse of discretion. United States v. Negroni 638 F.3d 434, 443, (3d Cir.2011) (citation omitted). To demonstrate that a sentence is procedurally reasonable, a district court must show “meaningful consideration of the relevant statutory factors and the exercise of independent judgment.” United States v. Grier, 475 F.3d 556, 571-72 (3d Cir.2007) (en banc), cert. denied, 552 U.S. 848, 128 S.Ct. 106, 169 L.Ed.2d 77 (2007). A major variance from the sentencing Guidelines may require a more significant justification than a minor one. Gall, 552 U.S. at 50,128 S.Ct. 586. We will affirm a procedurally sound sentence as substantively reasonable “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568. We focus on the totality of the circumstances, and the party challenging the sentence bears the burden of proving the sentence’s unreasonableness. Id. at 567. “[W]hile reviewing courts may presume that a sentence within the advisory Guidelines is reasonable, appellate judges must still always defer to the sentencing judge’s individualized sentencing determination.” Rita v. United States, 551 U.S. 338, 364, 127 S.Ct. 2456, 168 L.Ed.2d 203" } ]

[ { "docid": "16873362", "title": "", "text": "in ... Section 3553, the Court finds that this sentence is consistent with the nature, circumstances, and seriousness of the defendant’s violations and his history, characteristics, educational, vocational and corrective needs, as well as the need for just, non-disparate punishment, deterrence, and protection of the public.... We adjourn. App. 55. Defense counsel immediately objected to the imposition of 47 months of supervised release as unsupported by the record and unreasonable based on the facts of the case. The District Court did not address the objection on the record. Clark filed this timely appeal, arguing that the imposition of 47 months of supervised release for his revocation violation was procedurally and substantively unreasonable. II. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise jurisdiction over Clark’s appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). Clark challenges the imposition of a 47-month term of supervised release for the revocation violation and contends that the District Court committed procedural and substantive error by failing to apply separately the § 3553(a) factors when imposing the new term of supervised release. We review the procedural and substantive reasonableness of a revocation sentence for abuse of discretion. United States v. Doe, 617 F.3d 766, 769 (3d Cir.2010). When considering a procedural challenge to a revocation sentencing hearing, we ask whether the district court has given “rational and meaningful consideration to the relevant § 3553(a) factors.” Id. (quotation marks omitted). If we conclude that the sentence was procedurally sound, our inquiry shifts to substantive reasonableness. To address a defendant’s contention that the sentence imposed was substantively unreasonable, we ask “whether the final sentence, wherever it may lie within the permissible statutory range, was premised upon appropriate and judicious consideration of the relevant factors.” Id. at 770 (quotation marks omitted). A defendant who alleges substantive unreasonableness carries a heavy burden; “we will affirm the sentencing court ‘unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.’ ” Id. (quoting United States v. Tomko, 562 F.3d 558, 568 (3d" }, { "docid": "22387108", "title": "", "text": "his attendance at Narcotics Anonymous and Alcoholics Anonymous meetings; changing his address without notifying his probation officer; and failing to report to his probation officer that local police had questioned him concerning the alleged assault of his girlfriend. The District Court held a hearing, and Bungar admitted all four violations. In the Violation Worksheet submitted to the Court, the probation officer concluded that each violation was a grade C violation and calculated the advisory range of imprisonment under § 7B1.4(a) of the Guidelines to be eight to fourteen months. Bungar requested a sentence of twelve months’ house arrest, and the government did not object. The District Court, however, disagreed with the probation officer’s conclusions. Citing United States v. Blackston, 940 F.2d 877 (3d Cir.1991), the Court found that Bungar’s admitted cocaine use also constituted circumstantial evidence of simple possession of a controlled substance in violation of 21 U.S.C. § 844, a grade B violation, and, as required by 18 U.S.C. § 3583(g) and U.S. S.G. § 7B 1.3(a)(1), revoked his supervised release. Under the advisory Guidelines, Bungar therefore faced a term of imprisonment in the range of 21 to 27 months. He faced a statutory maximum, pursuant to 18 U.S.C. § 3583(e)(3), of five years’ imprisonment. The District Gourt heard argument as to the appropriate sentence, expressing concern over Bungar’s continuing abuse of illegal drugs in spite of having received a significant downward departure at sentencing in 1997. The Court also emphasized Bungar’s long history of offenses that included causing the deaths of two people and allegedly assaulting his girlfriend. Based on these considerations, the Court found that a sentence above the advisory Guidelines' range was warranted, and imposed a statutory maximum sentence of 60 months’ imprisonment. Bun-gar now appeals, arguing that the sentence imposed was unreasonable. He does not contest the Court’s finding that he had committed a grade B violation. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) (authorizing review of a sentence imposed “in violation of law”). EL The dust has settled, post -Booker, and it is now well understood that" }, { "docid": "22534670", "title": "", "text": "916 (8th Cir.2005)). “[W]e review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard.” Id. (citing Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). The advisory Guidelines recommend a sentencing range of 3 to 9 months imprisonment based upon Petreikis’s admission to a grade C violation of his supervised release and his criminal history category of I, which was calculated at the time Petreikis was originally sentenced to supervised release. See U.S.S.G. § 7B1.4(a). Petreikis acknowledges his revocation sentence was within the Guidelines range, but argues the district court (1) committed procedural error by failing to give explicit consideration to the 18 U.S.C. § 3553(a) factors, and (2) imposed a substantively unreasonable sentence. “A sentence within the Guidelines range is accorded a presumption of substantive reasonableness on appeal.” United States v. Perkins, 526 F.3d 1107, 1110 (8th Cir.2008) (citing United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008)). “[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation.” Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). “The appropriateness of brevity or length, conciseness or detail ... depends upon circumstances.” Id. “Unless a party contests the Guidelines sentence generally under § 3553(a) ..., the judge normally need say no more.” Id. We do not require a district court to “mechanically list every § 3553(a) consid eration when sentencing a defendant upon revocation of supervised release.” United States v. White Face, 383 F.3d 733, 740 (8th Cir.2004) (citing United States v. Jasper, 338 F.3d 865, 867 (8th Cir.2003)). Instead, “[e]vidence that the district court was aware of the relevant § 3553(a) factors required to be considered is sufficient,” and this evidence “can be inferred from the record.” United States v. Franklin, 397 F.3d 604, 607 (8th Cir.2005). A review of the record in this case demonstrates the district court was aware of the relevant sentencing factors. The revocation hearing transcript reflects the district court was aware of the nature of Petreikis’s violation. Through" }, { "docid": "22845798", "title": "", "text": "of discretion that resulted in a “plainly unreasonable” sentence. See United States v. Schwegel, 126 F.3d 551, 555 (3d Cir.1997) (per curiam); 18 U.S.C. §§ 3742(a)(4), (e)(4), and (f)(2). Dees contends that this standard has been supplanted by one of reasonableness under the applicable § 3553(a) factors. Because Dees’ sentence satisfies either standard, we need not decide now which standard of review applies to violations of supervised release. On appeal, Dees contends that his 72-month revocation sentence was unreasonable because the District Court’s purported intent behind the sentence was punitive. Dees notes that his revocation exceeded his initial 51-month sentence. Again, this comparison misses the point that his initial prison term was for three different sentences, albeit served concurrently. The District Court correctly stated that the theory behind sanctioning violations of supervised release is to “sanction primarily the defendant’s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.” See U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt. A district court’s primary consideration in handing down a revocation sentence is the defendant’s breach of trust. Additionally, a district court may consider the Sentencing Guidelines revocation table in U.S.S.G. § 7B1.4(a), which even before Booker was advisory. See United States v. Blackston, 940 F.2d 877, 893 (3d Cir.1991). The District Court took into account the proper factors when sentencing Dees to three consecutive 24 month terms of imprisonment. The District Court, during the revocation hearing, found that Dees’ technical and Grade B violations along with his criminal history gave him an advisory sentencing guideline range of 21 to 27 months under § 7B1.4. The District Court properly recognized that the statutory maximum capped Dees’ possible sentence at 24 months. As noted by Judge Schwab, Judge Ziegler initially issued three separate Judgment and Conviction Orders, each of which imposed a supervised release period of three years. With respect to giving Dees the maximum sentence allowed by statute, the District Court considered Dees’ multiple and flagrant breaches of trust that began almost immediately upon his release from" }, { "docid": "22139555", "title": "", "text": "district court; and (3) failing to report for substance abuse treatment. At his revocation hearing, Mathena pled true to the charges. The district court therefore granted the motion to revoke based on its finding that Mathena had violated the terms and conditions of his supervised release. In determining an appropriate term of imprisonment, the district court expressly considered the policy statements of Chapter 7 of the Guidelines. Based on the revocation table set forth in U.S.S.G. § 7B1.4(a), p.s., Mathena’s applicable sentencing range was six to twelve months imprisonment. Mathe-na asked the court to sentence him within this range. Citing Mathena’s “contemptuous disregard” for the court’s orders, the district court instead sentenced Mathena to the statutory maximum of thirty-six months imprisonment. The court entered a final order reflecting its decision, from which Mathena filed a timely notice of appeal. II “We will uphold a sentence unless it (1) was imposed in violation of law, (2) resulted from an incorrect application of the guidelines, (3) was outside the guideline range and is unreasonable, or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.” United States v. Headrick, 963 F.2d 777, 779 (5th Cir.1992) (citing 18 U.S.C. § 3742(e)). Because there are no applicable guidelines for sentencing after revocation of supervised release, see U.S.S.G. Chapter 7 Part A 1. (“At this time, the Commission has chosen to promulgate policy statements only.”), we will uphold Mathena’s sentence unless it is in violation of law or is plainly unreasonable. Headrick, 963 F.2d at 779. In making those determinations, we review the district court’s interpretation of statutes de novo. Id. A Mathena first contends that his sentence was imposed in violation of law because the district court failed to sentence him to a term of imprisonment within the applicable range set forth in U.S.S.G'. § 7B1.4, p.s. The applicable statutory provision provides: The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6) ... (3) revoke a term of supervised release, and require the person to serve in" }, { "docid": "22387113", "title": "", "text": "3553(a) factors, to revoke a term of supervised release and sentence the defendant to imprisonment for up to five years if it finds, by a preponderance of the evidence, that the defendant violated a condition of supervised release. If a defendant, while under supervision, is found to have unlawfully possessed a controlled substance, the district court is required to revoke supervised release and sentence the defendant in accordance with subsection (e)(3). 18 U.S.C. § 3583(g)(1). Sentence is imposed for violations of supervised release primarily to sanction the defendant’s breach of trust “ ‘while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.’ ” United States v. Dees, 467 F.3d 847, 853 (3d Cir.2006) (quoting U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt.). In imposing sentence, a district court must consider the policy statements under Chapter 7 of the Sentencing Guidelines, see 18 U.S.C. § 3553(a)(5); Blackston, 940 F.2d at 893, although the sentencing ranges set forth in the revocation table at U.S.S.G. § 7B 1.4(a) are merely advisory, Dees, 467 F.3d at 853. There is no dispute that Bungar used cocaine in violation of a condition of his supervised release, and that his testing positive for cocaine use constituted circumstantial evidence of simple possession, a grade B violation. See Blackston, 940 F.2d at 892. At the time of his 1997 sentencing, the District Court found him to have a Criminal History Category of VI, a finding he did not appeal. See U.S.S.G. § 7B1.4 application note 1. Under the § 7B1.4(a) policy statement, a grade B violation coupled with a Criminal History Category of VI suggests a sentencing range of 21 to 27 months. The record clearly reflects that the Court consulted § 7B1.4(a) and calculated the correct range. The record further establishes that the Court properly recognized that this policy statement was not binding, and that it could sentence Bungar to a statutory maximum sentence of five years’ imprisonment. See 18 U.S.C. § 3583(e)(3). Accordingly, the Court adequately considered both “the kinds of sentence and the" }, { "docid": "22139556", "title": "", "text": "imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.” United States v. Headrick, 963 F.2d 777, 779 (5th Cir.1992) (citing 18 U.S.C. § 3742(e)). Because there are no applicable guidelines for sentencing after revocation of supervised release, see U.S.S.G. Chapter 7 Part A 1. (“At this time, the Commission has chosen to promulgate policy statements only.”), we will uphold Mathena’s sentence unless it is in violation of law or is plainly unreasonable. Headrick, 963 F.2d at 779. In making those determinations, we review the district court’s interpretation of statutes de novo. Id. A Mathena first contends that his sentence was imposed in violation of law because the district court failed to sentence him to a term of imprisonment within the applicable range set forth in U.S.S.G'. § 7B1.4, p.s. The applicable statutory provision provides: The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6) ... (3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission, except that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison if the offense for which the person was convicted was a Class B felony, or more than 2 years in prison if the offense was a Class C or D felony. 18 U.S.C. § 3583(e). Mathena argues that the plain language of that section — i.e., “pursuant to ... the provisions of applicable policy statements issued by the Sentencing Commission” — requires a sentencing court to follow, and not just consider, the policy statements of Chapter 7 of the Guidelines when imposing a sentence upon" }, { "docid": "22534669", "title": "", "text": "18, 2008, when Petreikis was arrested in New York. The United States District Court for the Western District of New York transferred Pe-treikis to the District of Minnesota. On May 15, 2008, Petreikis appeared before the Minnesota district court for his revocation hearing. Petreikis admitted he violated the terms of his supervised release by failing to maintain contact with his probation officer. Petreikis’s attorney advised the district court Petreikis moved to Canada in 2000, and was arrested on the warrant after Petreikis was expelled from Canada in 2008. After hearing from both Petreikis and the government, the district court sentenced Petreikis to 9 months imprisonment followed by Petreikis’s original term of supervised release with additional conditions. II. DISCUSSION “On appeal, we may consider both the procedural soundness of the district court’s decision and the substantive reasonableness of the sentence imposed.” United States v. Merrival, 521 F.3d 889, 890 (8th Cir.2008). “We review a revocation sentence under the same ‘reasonableness’ standard that applies to initial sentencing proceedings[.]” Id. (citing United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005)). “[W]e review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard.” Id. (citing Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). The advisory Guidelines recommend a sentencing range of 3 to 9 months imprisonment based upon Petreikis’s admission to a grade C violation of his supervised release and his criminal history category of I, which was calculated at the time Petreikis was originally sentenced to supervised release. See U.S.S.G. § 7B1.4(a). Petreikis acknowledges his revocation sentence was within the Guidelines range, but argues the district court (1) committed procedural error by failing to give explicit consideration to the 18 U.S.C. § 3553(a) factors, and (2) imposed a substantively unreasonable sentence. “A sentence within the Guidelines range is accorded a presumption of substantive reasonableness on appeal.” United States v. Perkins, 526 F.3d 1107, 1110 (8th Cir.2008) (citing United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008)). “[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will" }, { "docid": "22387112", "title": "", "text": "in this regard is highly deferential. Id. We may not substitute our judgment for the sentencing court’s, but will affirm if we are convinced that “the final sentence, wherever it may lie within the permissible statutory range, was premised upon appropriate and judicious consideration of the relevant factors” in light of the circumstances of the case. United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir.2006); see also Cooper, 437 F.3d at 330 (noting that the central inquiry “ ‘is whether the district judge imposed the sentence he or she did for reasons that are logical and consistent with the factors set forth in section 3553(a)’ ” (quoting United States v. Williams, 425 F.3d 478, 481 (7th Cir.2005))). The party challenging the sentence bears the burden of proving its unreasonableness. United States v. King, 454 F.3d 187, 194 (3d Cir.2006). When a sentence is imposed for a violation of the conditions of supervised release, additional considerations apply. Section 3583(e)(3) of Title 18 of the United States Code permits a district court, after considering the § 3553(a) factors, to revoke a term of supervised release and sentence the defendant to imprisonment for up to five years if it finds, by a preponderance of the evidence, that the defendant violated a condition of supervised release. If a defendant, while under supervision, is found to have unlawfully possessed a controlled substance, the district court is required to revoke supervised release and sentence the defendant in accordance with subsection (e)(3). 18 U.S.C. § 3583(g)(1). Sentence is imposed for violations of supervised release primarily to sanction the defendant’s breach of trust “ ‘while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.’ ” United States v. Dees, 467 F.3d 847, 853 (3d Cir.2006) (quoting U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt.). In imposing sentence, a district court must consider the policy statements under Chapter 7 of the Sentencing Guidelines, see 18 U.S.C. § 3553(a)(5); Blackston, 940 F.2d at 893, although the sentencing ranges set forth in the revocation table at U.S.S.G." }, { "docid": "23382154", "title": "", "text": "“[wjhether we apply a ‘reasonableness’ standard of review or a ‘plainly unreasonable’ standard, no error occurred.” See, e.g., Johnson, 403 F.3d at 817. Under the pre-Booker standard for revocation sentences, “[a] district court’s sentence of imprisonment upon revocation of supervised release should be affirmed ‘if it shows consideration of the relevant statutory factors and is not plainly unreasonable.’” Carr, 421 F.3d at 429 (quoting United States v. McClellan, 164 F.3d 308, 309 (6th Cir.1999)). Under the post-Roofcer standard for Guidelines-based (non-rev ocation) sentences, sentences must be both procedurally and substantively reasonable. Procedural reasonableness requires the sentencing court to consider “the applicable Guidelines range” and “the other factors listed in 18 U.S.C. § 3553(a).” United States v. Esteppe, 483 F.3d 447, 450 (6th Cir.2007). “A sentence is substantively unreasonable if the district court ‘selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor.’ ” United States v. Husein, 478 F.3d 318, 332 (6th Cir.2007) (quoting United States v. Caver, 470 F.3d 220, 248 (6th Cir.2006)). In this case, as in Johnson, we do not reach the question of which standard applies to review of revocation sentences, as the district court did not err under either standard. Defendant challenges the district court’s sentence of six months of home detention and twenty-four months of supervised release following revocation of his supervised release. As the government notes, Defendant received a far lighter sentence than he might have under the advisory policy statements for violation of supervised release. Based on his criminal history, Defendant’s policy statement range was five to eleven months of incarceration. U.S.S.G. § 7B1.4(a). The district court chose an imprisonment term at the low end of the policy statement range, and elected in its discretion under U.S.S.G. § 7B1.3(c)(l) to allow Defendant to serve the entire incarceration sentence on home detention rather than in a correctional facility. Defendant argues, however, that the district court arrived at the sentence improperly because the court based its sentence in part on the goal of promoting respect for" }, { "docid": "10504311", "title": "", "text": "Wright, 642 F.3d 148, 154 n. 6 (3d Cir.2011). It appears that the Court in our case was aware that Carter’s Guidelines range for a Grade B violation was 6 to 12 months’ imprisonment, while the range for a Grade A violation was 27 to 33 months. App. at 50. Here, the Court exercised its discretion and imposed a sentence of 37 months’ imprisonment as an “appropriate sentence ... [,] whether it was an A violation or a B violation.” Id. at 104. In departing upward from both ranges, the District Court stressed that Carter had committed the same sort of credit card fraud for which he was serving supervised release, had given his underage victim alcohol, and had abused the leniency shown by the Court at his initial sentencing. Id. We cannot conclude this was an abuse of discretion. III. Conclusion The categorical approach does not apply when imposing a sentence in revoking a term of supervised release under U.S.S.G. § 7B1.3. A district court may consider a defendant’s actual conduct when determining — by a preponderance of evidence— whether that defendant violated the terms of his release by breaking the law. In doing so, the court must point to a provision of law that has been broken. Though it did not do so explicitly here, we are still able to affirm the sentence imposed based on the District Court’s alternative sentence calculation and explanation of the reasons it found 37 months’ imprisonment an appropriate sentence for Carter’s supervised release violations.. . This second conviction was deemed a violation of Carter’s probation in a prior case in Delaware County, Pennsylvania, for which Carter was also sentenced to one to two years’ imprisonment to run consecutively. . Unless otherwise noted, all references to the United States Sentencing Commission Guidelines Manual are to the version effective November 1, 2011. This was the version in effect for Carter's violation hearing at which he was sentenced. See U.S.S.G. § 1B1.11(a). . The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3583(e). We have jurisdiction under 28 U.S.C. § 1291 and" }, { "docid": "22045642", "title": "", "text": "of 8 to 14 months set forth in U.S.S.G. § 7B1.4(a) because Tadeo has AIDS and suffers from serious depression and psychotic symptoms, including hallucinations. The Government asked the court to revoke Tadeo’s term of supervised release and to impose an upward departure from the policy statement range of 8 to 14 months. In support of its recommendation, the Government cited the danger posed by Tadeo’s use of narcotics while on supervised release and the risk that he will commit other crimes including sexual offenses. The district court ordered that Tadeo’s term of supervised release be revoked based on his admission of facts that constituted a Grade C violation of the conditions of supervised release. The district court noted that Tadeo had committed a number of criminal offenses, including a violent and bizarre rape, while under the influence of drugs. For that reason, the district court concluded that an upward departure from the policy statement range of 8 to 14 months was warranted because of Tadeo’s return to the use of drugs while on supervised release. Tadeo has timely appealed. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(3). II Tadeo asserts that the district court abused its discretion by “upwardly departing from the sentencing guidelines.” The Government argues that the policy statements set forth in Chapter 7 of the U.S. Sentencing Guidelines Manual are not binding on a district court in sentencing a defendant after revoking his or her term of supervised release. Tadeo responds that the district court ignored its duty to consider the sentencing ranges set forth in U.S.S.G. § 7B1.4(a), and that it misapplied U.S.S.G. § 7B1.4, Application Note 3. In United States v. George, 184 F.3d 1119 (9th Cir.1999), we held that the sentencing ranges set forth in Chapter 7 are merely advisory, and that they are not binding on a district court in calculating the sentence that should be imposed upon revoking a term of supervised release. Id. at 1122. “[T]he policy statements set forth in Chapter 7 are neither guidelines nor interpretations or explanations of guidelines.” Id. at 1121. We review a district" }, { "docid": "22436911", "title": "", "text": "by the trial court in its deliberations concerning punishment for violation of conditions of supervised release. See 18 U.S.C. § 3553(a) (“The court, in determining the particular sentence to be imposed, shall consider ... any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2).”) (emphasis added); see also Ayers, 946 F.2d at 1130 (“Even if the policy statements are not binding on the courts, the court should consider them in sentencing defendants.”); United States v. Fallin, 946 F.2d 57, 58 (8th Cir.1991) (district court should have considered the policy statements); United States v. Anderson, 942 F.2d 606, 610 n. 4 (9th Cir.1991) (en banc) (must consider policy statements in sentencing); United States v. Baclaan, 948 F.2d 628, 631 (9th Cir.1991) (same). In reviewing the specific sentence of imprisonment imposed by the district court after revocation of defendant’s supervised release and the court’s explanation for that sentence, we will not reverse if it can be determined from the record to have been reasoned and reasonable. Under similar circumstances, the Third Circuit held: When there is no applicable sentencing guideline (Chapter 7 policy statements are not “sentencing guidelines”), and when the district court sentences within statutory limits ([defendant] concedes that the district court did not exceed its authority under section 3583(e)(3)), we are empowered to review the court’s sentence and will not disturb it unless it is “plainly unreasonable,” 18 U.S.C. § 3742(e)(4). See [United States v. J Scroggins, 910 F.2d [768,] 769 [11th Cir.1990]. Blackston, 940 F.2d at 894. The district court appropriately relied on 18 U.S.C. § 3583 when it determined that twenty-four months was the maximum prison sentence available upon revocation in this case. That statute provides that “[t]he court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6)— ... revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision.” 18 U.S.C. § 3583(e). We note that defendant’s original term of supervised release was twenty-four" }, { "docid": "22432642", "title": "", "text": "range for Doe’s post-revocation imprisonment was 4 to 10 months based on his criminal history category of II and a Grade C violation. U.S.S.G. § 7B1.4(a). However, the Guidelines provide that “[wjhere the original sentence was the result of a downward departure (e.g. as a reward for substantial assistance) ... an upward departure may be warranted.” U.S.S.G. § 7B1.4, cmt. n. 4. Here, Doe’s Guidelines range sentence of 60 to 65 months was initially reduced to 30 months for cooperation with the government and then further reduced to 12 months, which amounted to time served. His 24 month post-revocation imprisonment was thus reasonable in light of the earlier leniency he received. The addition of 12 months of supervised release upon the conclusion of Doe’s imprisonment brings his post-revocation sentence to the statutory maximum of three years. See 18 U.S.C. § 3583(b)(2) (limiting supervised release for Class C felonies to three years). Given the egregiousness of Doe’s violations, we cannot say that no reasonable court would impose the statutory maximum. We therefore reject Doe’s challenge based on substantive reasonableness, and we will affirm the District Court’s sentence. IV. Conclusion For the foregoing reasons, we will affirm the District Court’s revocation of Doe’s supervised release and imposition of a 24 month term of imprisonment followed by a 12 month term of supervised release. . The defendant's name has been changed to protect his identity. . Under Guidelines § 5K1.1, the government may file a motion for reduced sentence in circumstances where the defendant “provided substantial assistance” to the government in an investigation. . The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1)—(2). . This mirrors the mandate of § 994(k), which instructs the Sentencing Commission to “insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.” 28 U.S.C. § 994(k); see also Manzella, 475 F.3d at 158 n." }, { "docid": "20886060", "title": "", "text": "24-month sentence that the court imposed upon revoking his probation. . In particular, he contends that because the court did not articulate a rationale for the sentence, the court committed a procedural error that requires us to remand for resentencing. Our review of a sentence imposed in a revocation proceeding is “highly deferential,” and perhaps akin to “‘the narrowest judicial review of judgments we know,’ namely judicial review of sanctions imposed by prison disciplinary boards.” United States v. Robertson, 648 F.3d 858, 859 (7th Cir.2011) (quoting United States v. Kizeart, 505 F.3d 672, 675 (7th Cir. 2007)). We will sustain the sentence so long is it is not “plainly unreasonable.” Kizeart, 505 F.3d at 673-75. When a district judge revokes a defendant’s supervised release and sentences him to a prison term, he must consider both the Guidelines policy statements that prescribe the penalties for supervised release violations, see U.S.S.G. Chapter 7, Part B, as well as the statutory sentencing factors set forth in 18 U.S.C. § 3553(a), as applicable to revocations of supervised release, see 18 U.S.C. § 3583(e); and he must also “say something that enables the appellate court to infer that he considered both sources of guidance.” Robertson, 648 F.3d at 860 (emphasis in original). “Otherwise, competent appellate review is impossible.” Id. There is no dispute here that the district court took into account the Guidelines poli cy statements. These were cited and applied in the probation officer’s petition to revoke Boultinghouse’s supervise release, and the court addressed them implicitly in discussing the severity of the violations and the range of possible penalties. R. 21 at 44-45. As we noted earlier, section 7B1.4(a) called for a sentence in the range of 21 to 27 months, but because the sentence was capped by the relevant statute at 24 months, see 18 U.S.C. 3583(e)(3), that became the top of the range, see § 7B1.4(b)(3)(a). The 24-month sentence imposed by the court was within that (modified) range, and consequently the sentence is entitled to a presumption of reasonableness on appeal. E.g., United States v. Jones, 774 F.3d 399, 404 (7th Cir.2014)." }, { "docid": "22469744", "title": "", "text": "Mr. Neal has presented no support for his claim that he is entitled to exculpatory material. Consequently, we need not reach the substantive issue whether, and under what circumstances, an individual subject to revocation proceedings is entitled to exculpatory material. B. Sentence Mr. Neal also maintains that the sentence imposed by the district court was too severe. We recently confirmed that “a sentence imposed after the revocation of supervised release can be set aside only if it is ‘plainly unreasonable.’ ” United States v. Kizeart, 505 F.3d 672, 673 (7th Cir.2007). To reach a reasonable sentence, the district court must begin its analysis with the recommended imprisonment ranges found in U.S.S.G. § 7B1.4, but these ranges “inform[] rather than cabin[ ]” the district court’s sentencing discretion. United States v. Pitre, 504 F.3d 657, 664 (7th Cir.2007) (internal quotation marks and citations omitted). The court also must consider the sentencing factors enumerated in 18 U.S.C. § 3553(a). See United States v. Carter, 408 F.3d 852, 854 (7th Cir.2005). As with an initial sentencing decision, the court “need not make factual findings on the record for each factor”; however, “the record should reveal that the court gave consideration to those factors.” Id. In the present case, the district court employed the correct methodology in reaching Mr. Neal’s sentence. First, the court noted the suggested guidelines ranges for Mr. Neal’s violations. The two violations admitted by Mr. Neal, the requirement that Mr. Neal provide accurate financial reports and the prohibition on opening new lines of credit, are “Grade C” violations, see U.S.S.G. § 7B1.1(a)(3), and carry a recommended sentencing range of 3 to 9 months, see id. § 7B1.4. Additionally, the district court found that Mr. Neal had violated three other terms of his supervised release: committing another federal, state or local crime; being involved in video gambling; and being employed in an unlawful occupation. These additional violations are “Grade B” violations, see U.S.S.G. § 7Bl.l(a)(2), and carry a recommended sentence of 4 to 10 months, see id. § 7B1.4. The district court, however, then turned to the factors set forth in 18" }, { "docid": "22045643", "title": "", "text": "release. Tadeo has timely appealed. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(3). II Tadeo asserts that the district court abused its discretion by “upwardly departing from the sentencing guidelines.” The Government argues that the policy statements set forth in Chapter 7 of the U.S. Sentencing Guidelines Manual are not binding on a district court in sentencing a defendant after revoking his or her term of supervised release. Tadeo responds that the district court ignored its duty to consider the sentencing ranges set forth in U.S.S.G. § 7B1.4(a), and that it misapplied U.S.S.G. § 7B1.4, Application Note 3. In United States v. George, 184 F.3d 1119 (9th Cir.1999), we held that the sentencing ranges set forth in Chapter 7 are merely advisory, and that they are not binding on a district court in calculating the sentence that should be imposed upon revoking a term of supervised release. Id. at 1122. “[T]he policy statements set forth in Chapter 7 are neither guidelines nor interpretations or explanations of guidelines.” Id. at 1121. We review a district court’s consideration of the non-binding policy statements set forth in Chapter 7 for abuse of discretion. See id. at 1120. A district court abuses its discretion if it fails to consider these policy statements. See id. at 1122. If a district court considers the policy statements of Chapter 7, it is free to reject the suggested sentencing range and may revoke a defendant’s supervised release and impose a sentence that is below the statutory maximum. See id. at 1122-23 (citing United States v. Forrester, 19 F.3d 482, 485 (9th Cir.1994)). The record shows that the district court considered the suggested sentencing range contained in § 7B1.4(a). At the disposi-tional hearing on the petition to revoke the term of supervised release, the district court stated: As the dispositional report reflects, a Grade C violation committed by some one with a criminal history of six results in a policy statement range of 8 to 14 months imprisonment. The statutory maximum that you would face for these violations is 24 months imprisonment. There is a cap under the" }, { "docid": "22387119", "title": "", "text": "and represents additional punishment for his 1996 convictions, rather than a sanction for the breach of trust occasioned by his violations of supervised release. Thus, he argues, the District Court failed to impose a sentence “sufficient, but not greater than necessary” to achieve the purposes set forth in § 3553(a)(2). See 18 U.S.C. § 3553(a). We decline to find that the District Court’s imposition of a 60-month sentence was unreasonable. As Bungar concedes, the advisory Guidelines range under § 7B1.4 did not bind the Court. See Dees, 467 F.3d at 853. Moreover, he studiously ignores application note 4, which recognizes that in imposing sentence following the revocation of supervised release, a district court may consider the circumstances that informed the original sentence resulting in the supervised release — “[w]here the original sentence was the result of a downward departure (e.g., as a reward for substantial assistance), ... an upward departure may be warranted.” U.S.S.G. § 7B1.4 application note 4. Consistent with application note 4, the Court sentenced Bungar above the suggested range based on its concerns that his return to illegal conduct, his extensive history of violent criminal offenses, and the recent evidence of domestic violence, showed not only that he continued to pose a threat to the community, but constituted a significant breach of the considerable trust that the Court reposed in him by granting a generous downward departure in 1997. We do not find this determination unreasonable. See Blackston, 940 F.2d at 894 (stating that defendant’s failed drug tests, “occurring immediately on the heels of his release from prison and relating directly to the conduct for which he originally was convicted, surely bespeak a breach of trust”). See also United States v. Larison, 432 F.3d 921, 923 (8th Cir.2006) (finding that 60-month sentence for drug-related violations of supervised release was not unreasonable where Guidelines suggested a range of five to eleven months and defendant had received a large substantial assistance departure at his original sentencing). Nor do we find that a district court’s failure to give mitigating factors the weight a defendant contends they deserve renders the sentence" }, { "docid": "22949183", "title": "", "text": "for up to two years. See 18 U.S.C. § 3583(e)(3) (1994). In doing so, the District Court is not obliged to follow any binding sentencing guidelines; however, it is directed to consider the nonbinding policy statements found in Chapter Seven of the Guidelines Manual. See U.S.S.G. §§ 7B1.1-1.5 (1994). The policy statements applicable to this case recommended revocation of supervised release and a term of imprisonment from eighteen to twenty-four months, based on the facts that the conduct violating supervised release was a “Grade B Violation” and Sweeney was in Criminal History Category V at the time of his original sentencing. See U.S.S.G. §§ 7B1.1(a)(2), 7B1.3(a)(1), 7B1.4 (1995). The Sentencing Commission has stated, however, that the Chapter Seven policy statements are only “the first step in an evolutionary process.” U.S.S.G. Ch. 7, Pt. A 5 (1995). This Court has held that the policy statements are merely “advisory.” United States v. Anderson, 15 F.3d 278, 284 (2d Cir.1994); accord United States v. Hill, 48 F.3d 228, 231 (7th Cir.1995); United States v. Hooker, 993 F.2d 898, 900-901 (D.C.Cir.1993). Therefore, the fact that Sweeney received a term of imprisonment within the sentencing range recommended by the policy statements does not preclude appellate review. Compare United States v. Chabot, 70 F.3d 259, 260-61 (2d Cir.1995) (sentencing court’s failure to depart from binding guideline range is generally not renewable on appeal). Instead, since no guideline is applicable, we review the District Court’s sentence to see if it is “plainly unreasonable.” See 18 U.S.C. § 3742(a)(4) (1994). Sweeney contends that several mitigating factors make his sentence plainly unreasonable. First, he points out that the New Jersey state court imposed a sentence of only four months for causing obscene material to be sent to a minor. Thus, Sweeney argues, the District Court’s eighteen-month sentence for violation of supervised release is excessive in comparison. We note, however, that a comparison of the two sentences need not be determinative, since the District Court’s sentence was not intended to be a sanction for Sweeney’s conduct, but rather for the “breach of trust” committed against the District Court. See U.S.S.G." }, { "docid": "16873363", "title": "", "text": "factors when imposing the new term of supervised release. We review the procedural and substantive reasonableness of a revocation sentence for abuse of discretion. United States v. Doe, 617 F.3d 766, 769 (3d Cir.2010). When considering a procedural challenge to a revocation sentencing hearing, we ask whether the district court has given “rational and meaningful consideration to the relevant § 3553(a) factors.” Id. (quotation marks omitted). If we conclude that the sentence was procedurally sound, our inquiry shifts to substantive reasonableness. To address a defendant’s contention that the sentence imposed was substantively unreasonable, we ask “whether the final sentence, wherever it may lie within the permissible statutory range, was premised upon appropriate and judicious consideration of the relevant factors.” Id. at 770 (quotation marks omitted). A defendant who alleges substantive unreasonableness carries a heavy burden; “we will affirm the sentencing court ‘unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.’ ” Id. (quoting United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (en banc)). III. A. Clark asserts that procedural error arose from the District Court’s failure to adhere to the familiar three-step sentencing process. A sentencing court must (1) calculate the advisory Guidelines range, (2) formally rule on any departure motions and state how those rulings affect the advisory range, and (3) exercise its discretion pursuant to the factors set forth in § 3553(a). United States v. Lofink, 564 F.3d 232, 237-38 (3d Cir.2009). In a revocation hearing, however, the court must also adhere to the statutory requirements set forth in 18 U.S.C. § 3583. See Doe, 617 F.3d at 771-72; United States v. Bungar, 478 F.3d 540, 543-44 (3d Cir.2007). Section 3583 controls post-conviction and post-revocation supervised release. When imposing a defendant’s initial term of imprisonment, a district court may, after considering certain factors set forth in § 3553(a), include a term of supervised release. 18 U.S.C. §§ 3583(a), 3583(c). A defendant serving a term of supervised release must adhere to certain conditions, both mandatory and discretionary. See id. § 3583(d). If the defendant" } ]

[ { "docid": "22810708", "title": "", "text": "an area in which Congress has previously legislated can be said to serve the legislative purpose of fixing a perceived problem with the prior state of affairs — there is no reason to pass a new law, after all, if the legislators are satisfied with the old one. Moreover, the subjective motivation of Members of Congress in passing a statute — to the extent it can even be known — is irrelevant in this context: It is sufficient for due process analysis if there exists some legitimate purpose underlying the retroactivity provision. Cf. FCC v. Beach Communications, Inc., 508 U. S. 307, 313-315 (1993). Retroactive application of revenue measures is rationally related to the legitimate governmental purpose of raising revenue. In enacting revenue measures, retroactivity allows “the legislative body, in the revision of tax laws, to distribute increased costs of government among its taxpayers in the light of present need for revenue and with knowledge of the sources and amounts of the various classes of taxable income during the taxable period preceding revision.” Welch v. Henry, 305 U. S. 134, 149 (1938). For this reason, . “[i]n enacting general revenue statutes, Congress almost without exception has given each such statute an effective date prior to the date of actual enactment.... Usually the ‘retroactive’ feature has application only to that portion of the current calendar year preceding the date of enactment, but [some statutes have been] applicable to an entire calendar year that had expired preceding enactment. This ‘retroactive’ application apparently has been confined to short and limited periods required by the practicalities of producing national legislation. We may safely say that it is a customary congressional practice.” United States v. Darusmont, 449 U. S. 292, 296-297 (1981) (per curiam). But “the Court has never intimated that Congress possesses unlimited power to ‘readjust rights and burdens . . . and upset otherwise settled expectations.’” Connolly v. Pension Benefit Guaranty Corporation, 475 U. S. 211, 229 (1986) (O’Connor, J., concurring) (brackets omitted), quoting Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 16 (1976). The governmental interest in revising the tax" } ]

[ { "docid": "17019748", "title": "", "text": "drug offenses in 1991 and 1992 that rendered him deportable under 8 U.S.C. § 1227(a)(2), his period of continuous residence in the United States ended after only five years pursuant to the stop-time rule. Therefore, the BIA reasoned that Heaven was ineligible for cancellation of removal because he did not have seven years of continuous residence. Heaven, however, argues that his convictions for the drug offenses in 1991 and 1992 did not render him ineligible for cancellation of removal at that time because the stop-time rule was not enacted until 1996. Therefore, he contends that the BIA’s application of the stop-time rule to his convictions is impermissibly retroactive and violates his due process rights under the United States Constitution. 1. Retroactive Application of Statutes “[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence .... ” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Indeed, “[elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly .... ” Id. However, retroactive legislation is not, per se, unenforceable. See INS v. St. Cyr, 533 U.S. 289, 316, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (“[I]t is beyond dispute that, within constitutional limits, Congress has the power to enact laws with retrospective effect.”). The Supreme Court has set out a two-part test to determine when it is permissible to apply a statute retroactively. Margolies v. Deason, 464 F.3d 547, 551 (5th Cir.2006) (citing Landgraf). The first step is to “ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively.” St. Cyr, 533 U.S. at 316, 121 S.Ct. 2271 (citing Martin v. Hadix, 527 U.S. 343, 352, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999)); see also Landgraf, 511 U.S. at 280, 114 S.Ct. 1483 (stating “the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach”). Such a requirement ensures that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness. Landgraf, 511 U.S. at 268," }, { "docid": "22050217", "title": "", "text": "Act’s effective date. Jeffries v. Wood, 103 F.3d 827 (9th Cir.1996) (en banc). We published our decision prior to issuing an opinion because of the number of pending cases which depended on resolution of this issue, promising to detail our rationale in this full opinion. B. General Retroactive Effect of the Act The presumption against retroactive application of new laws “is deeply rooted in our jurisprudence and embodies a legal doctrine centuries older than our Republic.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994) (footnote omitted). It is “an essential thread in the mantle of protection that the law affords the individual citizen.” Lynce v. Mathis, -U.S. -, -, 117 S.Ct. 891, 895, 137 L.Ed.2d 63 (1997). To be sure, Congress has the power to enact legislation with retroactive effect so long as it comports with due process by passing constitutional muster under rational basis scrutiny. Gray v. First Winthrop Corp., 989 F.2d 1564, 1570 (9th Cir.1993). “Provided that the retroactive application of a statute is supported by a legitimate legislative purpose furthered by rational means, judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches[.]” Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, 104 S.Ct. 2709, 2717-18, 81 L.Ed.2d 601 (1984). However, because retroactive application of new laws disrupts settled expectations and actions taken in reliance on them, courts will not presume retroactive effect absent express statutory language. ‘Words in a statute ought not to have a retrospective operation, unless they are so clear, strong, and imperative, that no other meaning can be annexed to them, or unless the intention of the legislature cannot otherwise be satisfied.” United States v. Heth, 7 U.S. (3 Cranch) 399, 413, 2 L.Ed. 479 (1806). Landgraf altered the legal landscape so that prospective application has unquestionably become the default rule. 511 U.S. at 272, 114 S.Ct. at 1501. It established a three-stage analytical process for assessing the potential retroactive application of a statute. The first Landgraf question is whether Congress has" }, { "docid": "22651885", "title": "", "text": "S. 244 (1994), held, contrary to the INS’ arguments, that Congress’ intentions concerning the application of the “Cancellation of Removal” procedure are ambiguous and that the statute imposes an impermissible retroactive effect on aliens who, in reliance on the possibility of § 212(c) relief, pleaded guilty to aggravated felonies. See 229 F. 3d, at 416, 420. We agree. Retroactive statutes raise special concerns. See Land-graf, 511 U. S., at 266. “The Legislature’s unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals.” Ibid. Accordingly, “congressional enactments . . . will not be construed to have retroactive effect unless their language requires this result.” Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 208 (1988). “[This] presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the 'principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal.’ Kaiser, 494 U. S., at 855 (Scalia, J., concurring). In a free, dynamic society, creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal consequences of their actions.” Landgraf, 511 U. S., at 265-266 (footnote omitted). Despite the dangers inherent in retroactive legislation, it is beyond dispute that, within constitutional limits, Congress has the power to enact laws with retrospective effect. See id., at 268. A statute may not be applied retroactively, however, absent a clear indication from Congress that it intended such a result. “Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for" }, { "docid": "12396588", "title": "", "text": "Congress’s broader statutory purpose for the Act, see Tovar, 646 F.3d at 1304, but Congress saw fit to limit the Act’s reach to those immigrants who “sought to acquire the status of an alien lawfully admitted for permanent residence within one year.” 8 U.S.C. § 1153(h)(1)(A). In other words, this statute, like most, balances competing desiderata. In a system in which only a limited number of visas are made available at any given time, see 8 U.S.C. § 1152(a), and petitioners often wait years for a visa, the Act’s one-year limitation allows unused visas to be recaptured and reallocated to others awaiting such visas. As the Board is entrusted to administer the statute, we defer to its judgment. IV The more difficult question before us is whether the O. Vazquez rule should have been applied retroactively to Velásquez, even though his one-year period expired months before O. Vazquez was decided. We review determinations about the retroactive effect of legal rules de novo without giving any deference to the agency on that question. Zivkovic, 724 F.3d at 898-900; see also INS v. St. Cyr, 533 U.S. 289, 320 n. 45, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). As a general rule, “[rjetroae-tivity is not favored in the law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). The Supreme Court has explained that this aversion to retroactive rulemaking is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal. Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (internal quotation and citations omitted). In the immigration context, the reluctance to impose rules retroactively is “buttressed by ‘the longstanding principle of construing" }, { "docid": "12396589", "title": "", "text": "at 898-900; see also INS v. St. Cyr, 533 U.S. 289, 320 n. 45, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). As a general rule, “[rjetroae-tivity is not favored in the law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). The Supreme Court has explained that this aversion to retroactive rulemaking is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal. Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (internal quotation and citations omitted). In the immigration context, the reluctance to impose rules retroactively is “buttressed by ‘the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.’ ” St. Cyr, 533 U.S. at 320, 121 S.Ct. 2271 (quoting Cardoza-Fonseca, 480 U.S. at 449, 107 S.Ct. 1207). A rule is considered to be retroactive when it “attaches new legal consequences to events completed before its enactment.” Landgraf, 511 U.S. at 270, 114 S.Ct. 1483. The inquiry “demands a commonsense, functional judgment” and “should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations.” Martin v. Hadix, 527 U.S. 343, 357-58, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (internal quotation omitted); see also Landgraf, 511 U.S. at 270, 114 S.Ct. 1483 (“[Retroac-tivity is a matter on which judges tend to have ‘sound instincts[.]’ ”) (quoting Danforth v. Groton Water Co., 178 Mass. 472, 59 N.E. 1033, 1034 (1901) (Holmes, J.)). Justice Story provided the classic formulation: a legal rule has retroactive effect when it “ ‘takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes a new duty, or attaches a new disability," }, { "docid": "22589458", "title": "", "text": "evaluated on a case-by-case basis.” 8 C.F.R. § 240.64(b)(1); 8 C.F.R. § 1240.64(b)(1). Garcia-Ramirez contends that the more flexible § 1254 standard must be used to evaluate her continuous presence because applying § 1229b(d)(2) would be impermissibly retroactive. 1. In its landmark decision in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court set forth the principles we must consider in determining whether a statute should be applied retroactively. Noting that “the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic,” the Court stated in plain terms that, [ejlementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the “principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” Id. at 265, 114 S.Ct. 1483 (quoting Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 855, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring)); see INS v. St. Cyr, 533 U.S. at 316, 121 S.Ct. 2271. In light of these principles,, the Court articulated a two-step approach for evaluating when the normal presumption against retroactivity should not apply. Our “first task” under Landgraf is to “determine whether Congress has expressly prescribed the statute’s proper reach.” Landgraf, 511 U.S. at 280, 114 S.Ct. 1483. If Congress has clearly expressed that a law should be applied to conduct occurring before its enactment, our inquiry ends and we must defer to Congress’ command. Otherwise, we proceed to Landgraf s second step and ask “whether the new statute would have retroactive effect, ie., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. If the new law would have such a retroactive effect, the “traditional presumption teaches that [the new statute] does not" }, { "docid": "4228951", "title": "", "text": "States v. Brown, 381 U.S. 437, 456-462 [85 S.Ct. 1707, 14 L.Ed.2d 484] ... (1965). The Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute’s prospective application under the Clause “may not suffice” to warrant its retroactive application. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17 [96 S.Ct. 2882, 49 L.Ed.2d 752] ... (1976). These provisions demonstrate that retroactive statutes raise particular concerns. The Legislature’s unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. As Justice Marshall observed in his opinion for the Court in Weaver v. Graham, 450 U.S. 24 [101 S.Ct. 960, 67 L.Ed.2d 17] ... (1981), the Ex Post Facto Clause not only ensures that individuals have “fair warning” about the effect of criminal statutes, but also “restricts governmental power by restraining arbitrary and potentially vindictive legislation.” Id., at 28-29 [101 S.Ct. 960] ... (citations omitted). 511 U.S. at 265-67, 114 S.Ct. 1483 (footnotes omitted). The Supreme Court set forth an analysis that courts use to determine whether a statute applies retroactively. See 511 U.S. at 280, 114 S.Ct. 1483. First, the court examines whether the legislature expressly provided in the statute that it applies retroactively. See Landgraf v. USI Film Prods., 511 U.S. at 280, 114 S.Ct. 1483. If the legislation is expressly retroactive, the analysis ends, and the legislature’s express intent controls. See 511 U.S. at 280, 114 S.Ct. 1483. If there is no express language regarding retroactivity, the court must analyze whether the statute, if applied retroactively, “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” 511 U.S. at 280, 114 S.Ct. 1483. If the statute, as applied, would have one of these three effects, the statute will not be applied retroactively absent clear legislative intent" }, { "docid": "3040500", "title": "", "text": "Congress has the power to make statutes apply retroactively, such statutes pose special concerns. See Landgraf v. USI Film Prods., 511 U.S. 244, 266, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The Supreme Court has thus recognized that a “presumption against retroactive legislation” is “deeply rooted” in its jurisprudence. Id. at 265, 114 S.Ct. 1483. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. Id. In determining whether legislation’s effects are impermissibly retroactive, a two-step test is employed. United States v. Reynard, 473 F.3d 1008, 1014 (9th Cir.2007). Under the first step, “[a] statute may not be applied retroactively ... absent a clear indication from Congress that it intended such a result.” St. Cyr, 533 U.S. at 316, 121 S.Ct. 2271. “If Congress’s intent is sufficiently clear from the text and legislative history, then the statute may be applied retroactively, and the court need not address the second step.” Reynard, 473 F.3d at 1014. “Step two must be employed where Congress’s retroactive intent is not clear. We must then determine whether application of the act violates the Due Process Clause and consequently has a ‘retroactive effect.’ ” Id. In St. Cyr, the Supreme Court addressed the retroactivity of IIRIRA § 304(b) in the context of an alien who had pleaded guilty to an aggravated felony. Applying the retroactivity analysis laid out in Landgraf, the Court first asked whether Congress had clearly expressed an intention to make IIRIRA § 304(b) retroactive. St. Cyr, 533 U.S. at 315, 121 S.Ct. 2271. The Court concluded that it had not. Id. at 320, 121 S.Ct. 2271. Proceeding to step two, the Court inquired whether the new law would produce an impermissibly retroactive effect upon aliens who had pleaded guilty “at a time when their plea would not have rendered them ineligible for § 212(c) relief.” Id. “The inquiry into whether a statute operates retroactively demands a commonsense, functional judgment about ‘whether the new provision attaches new legal consequences to events completed before its" }, { "docid": "4294485", "title": "", "text": "would be entitled to for earlier phases of this litigation and that depriving it of these monetary rights constitutes an ex-post facto denial of prior-vested rights. See Fed.R.Civ.P. 54 (costs “shall be allowed as of course to the prevailing party”). In light of the serious federalism and other claims at issue this possible de minimis claim does not warrant a declaration of unconstitutionality. 3. Retroactivity “[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than the Republic.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). “[T]he presumption is very strong that a statute was not meant to act retrospectively, and it ought never to receive such a construction if it is susceptible of any other.” Carl Marks & Co., Inc. v. Union of Soviet Socialist Republics, 665 F.Supp. 323, 336 (S.D.N.Y.1987) (internal citation omitted). The antiretroactivity principle was of such concern to the founders that it was safeguarded in various provisions of the Constitution, including the Ex Post Facto Clause, the Fifth Amendment’s Takings Clause, prohibitions on Bills of Attainder, and the Due Process Clause’s protection of the interests in fair notice and repose: These provisions demonstrate that retroactive statutes raise particular concerns. The Legislature’s unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals.... [It] restricts governmental power by restraining arbitrary and potentially vindictive legislation. Landgraf, 511 U.S. at 266-67, 114 S.Ct. 1483 (internal quotation and citations omitted). A statute does not operate retrospectively simply because it is applied in a case arising from conduct antedating the statute’s enactment. Courts instead ask whether the new provision attaches new legal consequences to events completed before its enactment: The conclusion that a particular rule operates “retroactively” comes at the end of a process of judgement concerning the nature and extent of the change in the law and the degree of connection between the" }, { "docid": "22589457", "title": "", "text": "the United States” if the alien “has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.” Garcia-Ramirez does not contest that if § 1229b(d)(2) applies retroactively, her five-month absence in 1989 would violate the 90/180-day rule. From 1986 until IIRIRA’s effective date in April 1997, however, the relevant statute provided that a departure from the United States did not break continuous presence if it was “brief, casual, and innocent and did not meaningfully interrupt the [alien’s] continuous physical presence” in the United States. § 1254(b)(2) (1995). “The evident statutory purpose [of this standard was] to recognize that a person who lives for [the requisite number of years] in the United States does not destroy [her] eligibility by actions that do not affect [her] commitment to living in this country.” Castrejon-Garcia v. INS, 60 F.3d 1359, 1362 (9th Cir.1995). Under this pre-IIRIRA rule, “[f]or purposes of evaluating whether an absence is brief, single absences in excess of 90 days ... will be evaluated on a case-by-case basis.” 8 C.F.R. § 240.64(b)(1); 8 C.F.R. § 1240.64(b)(1). Garcia-Ramirez contends that the more flexible § 1254 standard must be used to evaluate her continuous presence because applying § 1229b(d)(2) would be impermissibly retroactive. 1. In its landmark decision in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court set forth the principles we must consider in determining whether a statute should be applied retroactively. Noting that “the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic,” the Court stated in plain terms that, [ejlementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the “principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” Id. at 265, 114 S.Ct. 1483 (quoting" }, { "docid": "4228948", "title": "", "text": "Agency, Inc., 421 U.S. 454, 463-64, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Statutes of limitations are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise. United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Statutes of limitations are not simply technicalities. On the contrary, they have long been respected as fundamental to a well-ordered judicial system.... [I]n the judgment of most legislatures and courts, there comes a point at which the delay of a plaintiff in asserting a claim is sufficiently likely either to impair the accuracy of the factfinding process or to upset settled expectations that a substantive claim will be barred without respect to whether it is meritorious. Bd. of Regents v. Tomanio, 446 U.S. 478, 487, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980), abrogation on other grounds recognized in Fogle v. Slack, 419 Fed.Appx. 860, 865-66 (10th Cir.2011) (unpublished). Thus, once a legislative body has determined what is a sufficient period for bringing a claim, the courts should refuse to hear the claim after that time has passed. See Guar. Trust Co. v. United States, 304 U.S. 126, 136, 58 S.Ct. 785, 82 L.Ed. 1224 (1938). FEDERAL LAW REGARDING PROSPECTIVE APPLICATION OF LEGISLATION In Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court of the United States noted: As Justice Scalia has demonstrated, the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the “principle that the legal effect of conduct should ordinarily be assessed under the" }, { "docid": "1356943", "title": "", "text": "reinsurance agreements were prohibited by Section 8. The CFPB then applied its new interpretation of Section 8 retroactively against PHH, ruling against PHH based on conduct that had occurred as far back as 2008. The retroactive application of the CFPB’s new interpretation violated the Due Process Clause. The-Due Process Clause limits the extent to which the Government may retroactively alter the legal consequences of an entity’s or person’s past conduct. That anti-retroactivity principle “is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.” Landgraf v. USI Film Products, 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); see also Eastern Enterprises v. Apfel, 524 U.S. 498, 547, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) (Kennedy, J., concurring in the judgment and dissenting in part) (“[F]or centuries our law has harbored a singular distrust of retroactive statutes.”). Retroactivity—in particular, a new agency interpretation that is retroactively applied to proscribe past conduct— contravenes the bedrock due process principle that the people should have fair notice of what conduct is prohibited. As the Supreme Court has emphasized, “individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf, 511 U.S. at 265, 114 S.Ct. 1483. Due process therefore requires agencies to “provide regulated parties fair warning of the conduct a regulation prohibits or requires.” Christopher v. SmithKline Beecham Corp., — U.S. -, 132 S.Ct. 2156, 2167, 183 L.Ed.2d 153 (2012) (internal quotation marks and alteration omitted); see also FCC v. Fox Television Stations, Inc., — U.S. -, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234 (2012) (“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”); cf. United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 674, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973) (“Thus, to the extent that the regulations deprived PICCO of fair warning as to what conduct the Government intended to make criminal, we think there can be no doubt that traditional notions of fairness inherent in our system" }, { "docid": "22389651", "title": "", "text": "in fair notice and repose that may be compromised by retroactive legislation.” Landgraf v. USI Film Prod., 511 U.S. 244, 266, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1999). The Supreme Court limits retroactive statutes under the Due Process Clause as part of its longstanding “prohibition against arbitrary and irrational legislation.” Carlton, 512 U.S. at 30, 114 S.Ct. 2018 (quoting Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 733, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984)). To satisfy due process, the Court requires that Congress must have enacted a retroactive statute for a legitimate legislative purpose, and retroactively applying the statute must be a rational means to accomplish Congress’ purpose. Carlton, 512 U.S. at 31, 114 S.Ct. 2018. The constitutionality of retroactive legislation is “conditioned upon a rationality requirement beyond that applied to other legislation.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 223, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (Scalia, J. concurring) (citing Pension Benefit Guaranty Corp., 467 U.S. at 730, 104 S.Ct. 2709; Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16-17, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976)). Further, the period of retroactivity must be moderate and “confined to short and limited periods required by the practicalities of national legislation.” Carlton, 512 U.S. at 32, 114 S.Ct. 2018 (quoting United States v. Darusmont, 449 U.S. 292, 296, 101 S.Ct. 549, 66 L.Ed.2d 513 (1981)). The Court focuses on three primary factors in determining whether the purpose of a retroactive statute comports with due process. First, the Court looks to whether Congress applied a law retroactively to remedy a defect in previous legislation. Second, the Court examines whether Congress provided a specific rationale for applying the statute retroactively because “[t]he retrospective aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former.” Usery, 428 U.S. at 17, 96 S.Ct. 2882. Finally, the Court considers the severity of the consequences of the retroactive legislation, including the effect of the legislation on a party’s interest in fair notice" }, { "docid": "83347", "title": "", "text": "been made previously, citing this court’s decision in Lopez De Jesus v. INS, 312 F.3d 155 (5th Cir.2002). Falek contends that there this court considered an impermissible retroac-tivity argument that was not raised below because it was not a “procedural error correctable by the BIA” and thus was “not subject to an exhaustion requirement.” See 312 F.3d at 162 n. 47. Falek also relies on a more recent Ninth Circuit case in which the court held that “[r]etroactivity challenges to immigration laws implicate legitimate due process considerations that need not be exhausted in administrative proceedings because the BIA cannot give relief on such claims.” See Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir.2005). Falek is incorrect. Although there is language in the Supreme Court’s seminal decision in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), indicating that retroactive application of the law can implicate legitimate due process concerns, constitutional due process was not the ground relied upon by the court in that case or in St. Cyr. A careful reading of Landgraf demonstrates that a claim based on St. Cyr — which is plainly what Falek attempts to bring here — is an argument of statutory interpretation. It draws upon a “presumption against retroactive legislation [that] is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.” Landgraf, 511 U.S. at 265, 114 S.Ct. 1483. Although the Supreme Court found that “the antiretroactivity principle finds expression in several provisions of our Constitution,” including the Due Process clause, those “restrictions ... are of limited scope.” Id. at 266, 267, 114 S.Ct. 1483. Ultimately, the Court concluded discussion of the Constitution by stating that “while the constitutional impediments to retroactive civil legislation are now modest, prospectivity remains the appropriate default rule.” Id. at 272, 114 S.Ct. 1483 (emphasis in original). It then analyzed the statute at issue under this rule. St. Cyr follows the same analytical path and nowhere mentions the Constitution in its analysis of the impermissibly retroactive effect of IIRIRA on the petitioner’s earlier guilty plea. A" }, { "docid": "4228949", "title": "", "text": "487, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980), abrogation on other grounds recognized in Fogle v. Slack, 419 Fed.Appx. 860, 865-66 (10th Cir.2011) (unpublished). Thus, once a legislative body has determined what is a sufficient period for bringing a claim, the courts should refuse to hear the claim after that time has passed. See Guar. Trust Co. v. United States, 304 U.S. 126, 136, 58 S.Ct. 785, 82 L.Ed. 1224 (1938). FEDERAL LAW REGARDING PROSPECTIVE APPLICATION OF LEGISLATION In Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court of the United States noted: As Justice Scalia has demonstrated, the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the “principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” [Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring) ]. In a free, dynamic society, creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal consequences of their actions. It is therefore not surprising that the antiretroactivity principle finds expression in several provisions of our Constitution. The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation. Article I, § 10, cl. 1, prohibits States from passing another type of retroactive legislation, laws “impairing the Obligation of Contracts.” The Fifth Amendment’s Takings Clause prevents the Legislature (and other government actors) from depriving private persons of vested property rights except for a “public use” and upon payment of “just compensation.” The prohibitions on “Bills of Attainder” in Art. I, §§ 9-10, prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct. See, e.g., United" }, { "docid": "22295800", "title": "", "text": "St. Cyr was ineligible to apply for “cancellation from removal” by its terms because he was convicted of an aggravated felony. See 8 U.S.C. § 1101(a)(43). Thus, if either AEDPA § 440(d) or IIRIRA § 304 apply to this case, as the INS argues, St. Cyr is removable because he pled guilty to a de-portable offense and is statutorily ineligible to apply to the BIA for discretionary relief from deportation. B. Retroactivity. Our analysis of whether AEDPA § 440(d) and IIRIRA § 304 (referred to collectively as “the bar to relief’) apply to removal proceedings against an alien who pled guilty to a deportable crime before the date of IIRIRA’s enactment is governed by the legal principles announced by the Supreme Court in its landmark decisions, Landgraf v. USI Film Prod., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) and Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997). The Supreme Court directs that we begin with the “presumption ... deeply rooted in our jurisprudence,” against the retroactive application of legislation. Landgraf, 511 U.S. at 265, 114 S.Ct. 1483; Hughes Aircraft, 520 U.S. at 946, 117 S.Ct. 1871 (quoting Landgraf). This “principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” Landgraf, 511 U.S. at 265, 114 S.Ct. 1483 (quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring)). “Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.” Id. Application of this presumption requires that statutes are not afforded retrospective effect unless “Congress has clearly manifested its intent to the contrary.” Hughes Aircraft, 520 U.S. at 946, 117 S.Ct. 1871. The Supreme Court in Landgraf provided the following framework for determining whether a law should apply to cases where the underlying conduct occurred prior to enactment: When a case" }, { "docid": "11045444", "title": "", "text": "killing. Pub.L. No. 102-256, 106 Stat. 73. Section 2 of the Torture Act provides that “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation — (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual....” Id., § 2(a). The Torture Act establishes a ten year statute of limitations and is silent as to the question of retroactive application. The Supreme Court’s decision in Landgraf v. USI Film Products, 511 U.S. 1483, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), is instructive as to whether the Torture Act applies to a cause of action which accrued prior to its enactment. In Landgraf, the Court held that provisions of the Civil Rights Act of 1991 allowing recovery of compensatory and punitive damages, and authorizing a jury trial on such damages, did not apply to a case pending on appeal when the statute was enacted. Significantly, the Court emphasized the importance of a general presumption against the retroactivity of a statute: the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal. Landgraf, 511 U.S. at-, 114 S.Ct. at 1497 (internal quotations and citations omitted). The Court acknowledged, however, that, Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have sound instincts, and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance. Id., 511 U.S. at -, 114 S.Ct. at 1499 (internal quotations and citations omitted) (emphasis supplied). In addition, the Landgraf Court stated: We have regularly" }, { "docid": "1164333", "title": "", "text": "first address the question whether that statute may be applied retroactively to her claims. 2. Retroactivity The provisions of the TVPA statute itself do not speak to the question of retroactivity; nor does the statute’s legislative history shed light on the matter. Last term, in Landgraf v. USI Film Products,—U.S. -, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court re emphasized the importance of a general presumption against retroactivity. There, the Court held that provisions of the Civil Rights Act of 1991 allowing recovery of compensatory and punitive damages, and authorizing a jury trial on such damages, did not apply to a case pending on appeal when the statute was enacted. The Court explained: the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the “principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” — U.S. at-, 114 S.Ct. at 1497 (citation and footnotes omitted). The Court noted, however: We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed____ Application of a new jurisdictional rule usually “takes away no substantive right but simply changes the tribunal that is to hear the ease.” Present law normally governs in such situations because jurisdictional statutes “speak to the power of the court rather than to the rights or obligations of the parties.” —U.S. at---, 114 S.Ct. at 1501-02 (citations omitted). Similarly, applying the TVPA retroactively allows Ortiz to bring suit in federal court rather than in a municipal court. It does not automatically change the rights or obligations of the parties. In this case, it is theoretically possible to tease out the legal argument that had the defendant only known of his incipient liability under" }, { "docid": "2741103", "title": "", "text": "Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16-17, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). A more stringent standard of rationality review may be appropriate in the criminal alien context: [T]he deportation cases present retroac-tivity in a context in which the targeted group suffers the dual political disability of being made up of immigrants and persons convicted of crimes. As an unpopular group, it is vulnerable in the political process and unlikely to be able to voice its interests effectively. The Court is therefore appropriately cast into a more active role in protecting the basic concept that people should have fair warning of the consequences of their conduct and that unpopular groups should not be targeted unfairly through retroactive legislation. Morawetz, supra, 73 N.Y.U.L.Rev. at 146-47. In a recent ease, Eastern Enters. v. Apfel, the Supreme Court considered a due process challenge to a retroactive statute. See 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998). Although the case was decided under the Takings Clause and no opinion commanded a majority of the Court, the opinions overall evince a serious concern with retroactivity. Commenting on the Court’s substantive due process case law, Justice Kennedy stated that “[tjhese cases reflect our recognition that retroactive lawmaking is a particular concern for the courts because of the legislative ‘tempt[ation] to use retroactive legislation as a means of retribution against unpopular groups or individuals.’ ” Id. 118 S.Ct. at 2159 (Kennedy, J., concurring) (quoting Landgraf v. USI Film Products, 511 U.S. 244, 266, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). The harshness and oppressiveness of a measure enters into the due process-rationality calculus. See, e.g., id. at 2149 (“Our [Due Process and Takings] decisions have left open the possibility that legislation might be unconstitutional if it imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability, and the extent of that liability is substantially disproportionate to the parties’ experience.”); Pension Benefit Guar. Corp., 467 U.S. at 727, 104 S.Ct. 2709 (“retrospective civil legislation may offend due process if it is ‘particularly harsh and oppressive’" }, { "docid": "22389650", "title": "", "text": "Fifth Amendment forbids Congress from enacting legislation expressly made retroactive when the “retroactive application [of the statute] is so harsh and oppressive as to transgress the constitutional limitation.” United States v. Carlton, 512 U.S. 26, 30, 114 S.Ct. 2018, 129 L.Ed.2d 22 (1994) (quoting Welch v. Henry, 305 U.S. 134, 147, 59 S.Ct. 121, 83 L.Ed. 87 (1937)). As Justice Story observed, the Supreme Court has long disfavored retroactive statutes because “retrospective laws are, indeed generally unjust; and, as has been forcibly said, neither accord with sound legislation nor with the fundamental principles of the social compact.” Eastern Enterprises v. Apfel, 524 U.S. 498, 533, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) (quoting 2 J. Story, Commentaries on the Constitution § 1398 (5th ed. 1891)). Retroactive legislation “presents problems of unfairness that are more serious than those posed by prospective legislation, because it can deprive citizens of legitimate expectations and upset settled transactions.” General Motors Corp. v. Romein, 503 U.S. 181, 191, 112 S.Ct. 1105, 117 L.Ed.2d 328 (1992). Thus, due process “protects the interests in fair notice and repose that may be compromised by retroactive legislation.” Landgraf v. USI Film Prod., 511 U.S. 244, 266, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1999). The Supreme Court limits retroactive statutes under the Due Process Clause as part of its longstanding “prohibition against arbitrary and irrational legislation.” Carlton, 512 U.S. at 30, 114 S.Ct. 2018 (quoting Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 733, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984)). To satisfy due process, the Court requires that Congress must have enacted a retroactive statute for a legitimate legislative purpose, and retroactively applying the statute must be a rational means to accomplish Congress’ purpose. Carlton, 512 U.S. at 31, 114 S.Ct. 2018. The constitutionality of retroactive legislation is “conditioned upon a rationality requirement beyond that applied to other legislation.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 223, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (Scalia, J. concurring) (citing Pension Benefit Guaranty Corp., 467 U.S. at 730, 104 S.Ct. 2709; Usery v. Turner Elkhorn Mining Co.," } ]

[ { "docid": "18769374", "title": "", "text": "since this determination is not clearly erroneous these findings shall not be overturned. The gravamen of Charisma’s appeal lies in its assertion that the continued availability of the leased premises for Air Florida’s use constituted “new value” and therefore falls within the subsequent advance exception for purposes of section 547(c)(4) of the Bankruptcy Code. 11 U.S.C. § 547(c)(4). It is undisputed that Air Florida paid an amount in excess of eleven thousand dollars to Charisma within this ninety-day preference period, and that this amount may be recovered by the Trustee unless it falls within the subsequent advance exception set forth in section 547(c)(4). See In re Fulghum Const. Corp., 45 B.R. 112 (Bankr.M.D.Tenn.1984), aff'd, 78 B.R. 146 (M.D.Tenn.1987). A subsequent advance is excepted because it is reasoned that a creditor who contributes new value in return for payments from the incipient bankrupt, should not later be deemed to have depleted the bankruptcy estate to the disadvantage of other creditors. See V. Countryman, The Concept of a Voidable Preference in Bankruptcy, 38 Van.L.Rev. 713, 781-790 (1985). In pertinent part this section of the Bankruptcy Code provides that: (c) The trustee may not avoid under this section a transfer— (4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor— (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor.... 11 U.S.C. § 547(c)(4). This section has generally been read to require: (1) that the creditor must have extended the new value after receiving the challenged payments, (2) that the new value must have been unsecured, and (3) that the new value must remain unpaid. See e.g., In re Fulghum, 45 B.R. at 119; In re Keydata Corporation, 37 B.R. 324, 328 (Bankr.D.Mass.1983); In the Matter of Bishop, 17 B.R. 180, 183 (Bankr.N.D.Ga.1982). In the instant case, the second and third elements have concededly been satisfied. The rent due Charisma" } ]

[ { "docid": "14426669", "title": "", "text": "under § 547(b), a transfer is deemed to occur on the date the check is honored. Barnhill v. Johnson, 503 U.S. 393, 401, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992). The Supreme Court acknowledged that the legislative history for § 547(c) stated a payment was to be considered made when the check was delivered. The Supreme Court noted: These sections are designed to encourage creditors to continue to deal with troubled debtors on normal business terms by obviating any worry that a subsequent bankruptcy filing might require the creditor to disgorge as a preference an earlier received payment. But given this specialized purpose, we see no basis for concluding that the legislative history, particularly legislative history explicitly confined by its own terms to § 547(c), should cause us to adopt a ‘date of delivery’ rule for purposes of § 547(b). Barnhill, 503 U.S. at 402, 112 S.Ct. 1386. Another court noted: “[w]hile the courts are not unanimous on this issue, by far the majority hold that, for purposes of section 547(c)(4), the transfer occurs when the check is delivered.” Kroh Bros. Dev. Co. v. Continental Constr. Engineers, Inc. (In re Kroh Bros. Dev. Co.), 930 F.2d 648, 650 (8th Cir.1991) (footnote omitted). Other courts have also determined that the date of delivery of the check is the date of the preference for § 547(c)(4) purposes. See Chaitman v. Paisano Automotive Liquids, Inc. (In re Almarc Mfg., Inc.), 62 B.R. 684, 687 (Bankr.N.D.Ill.1986). We thus conclude the preferential transfer occurred on the date the check was delivered, January 3,1997. The pivotal issue then becomes whether new value was given before or after January 3, 1997. In order to qualify for the new value defense, the creditor must prove: (1) new value was given to the debtor after the preferential transfer; (2) that the new value was unsecured; and (3) that it remained unpaid. Hosier v. Ever-Fresh Food Co. (In re IRFM, Inc.), 52 F.3d 228 (9th Cir.1995). “New value” is defined as: [M]oney or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred" }, { "docid": "6905250", "title": "", "text": "have reached the contrary result and hold that new value need not remain unpaid. See In re Ladera Heights Comm. Hosp., Inc., 152 B.R. 964, 968 (Bankr.C.D.Cal.1993). However, an even more recent trend has developed where courts and commentators have rejected the short hand approach and have undertaken a more thorough analysis of the language of section 547(c)(4)(B). These cases reason that the numerous decisions focusing on the narrow issue of whether the new value remains unpaid are incomplete and inaccurate. In the Matter of Toyota of Jefferson, Inc., 14 F.3d 1088, 1093 n. 2 (5th Cir.1994); In re PNP Holdings Corp., 167 B.R. 619, 629 (Bankr.W.D.Wash.1994); In re Check Reporting Servs., Inc., 140 B.R. 425, 431-34 (Bankr.W.D.Mich.1992). According to this view, the proper inquiry directed by section 547(c)(4)(B) is whether the new value has been paid for by “an otherwise unavoidable transfer.” In the Matter of Toyota of Jefferson, 14 F.3d at 1093 n. 2. This inquiry follows the Kroh Bros, rationale that a creditor should not get double credit for an advance of new value. However, instead of barring the new value defense altogether anytime new value has been repaid, this approach allows the new value defense if the trustee can recover the repayment by some other means. This analysis fully comports with the statute’s plain language. While the phrase “the debtor did not make an otherwise unavoidable transfer” is complicated, it is not ambiguous and its meaning is easily discernible. See Check Reporting Servs., 140 B.R. at 434-36 (conducting an exhaustive analysis of the phrase “did not make an otherwise unavoidable transfer”). As one commentator has explained: If the debtor has made payments for goods or services that the creditor supplied on unsecured credit after an earlier preference, and if these subsequent payments are themselves voidable as preferences (or on any other ground), then under section 547(c)(4)(B) the creditor should be able to invoke those unsecured credit extensions as a defense to the recovery of the earlier voidable preference. On the other hand, the debtor’s subsequent payments might not be voidable on any other ground and not" }, { "docid": "15708931", "title": "", "text": "or debtor in possession may not avoid a transfer to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor. The policy rationale underlying the subsequent new value exception of § 547(c)(4) is to encourage creditors to deal with a financially distressed firm in the hope of rehabilitating the firm. S. Technical College v. Hood (In re S. Technical College), 89 F.3d 1381, 1384 (8th Cir.1996). Specifically, § 547(c)(4) is designed to protect a creditor, such as Application, who provides the debtor with goods or services on an unsecured basis during the preference period after receiving payment from the debtor. Id.; See also 5 Collier on Bankruptcy ¶ 547.04[4], In such a case, the trustee or debtor in possession cannot avoid the initial transfer because the creditor’s provision of the subsequent goods or services has replenished the estate. Kroh Bros. Dev. Co. v. Continental Constr. Eng’r (In re Kroh Bros.), 930 F.2d 648, 652 (8th Cir.1991). In order to prevail on a subsequent new value defense under § 547(c)(4), the creditor must establish that: (1) the creditor received a transfer that is otherwise avoidable as a preference under § 547(b); (2) after receiving the preferential transfer, the creditor advanced new value to the debtor on an unsecured basis; and (3) the debtor did compensate the creditor with an “otherwise unavoidable” transfer for the new value as of the petition date. Kroh Bros., 930 F.2d at 652 (quoting New York City Shoes v. Bentley Int’l (In re New York City Shoes), 880 F.2d 679, 680 (3d Cir.1989)). Here, as illustrated above, it is undisputed that all of the Preference Payments to Application are otherwise avoidable as a preference under § 547(b). Also, there is no dispute that Application provided services to Debtors after receiving some of the Preference Payments on" }, { "docid": "16324593", "title": "", "text": "A. The “New Value” Defense A transferee, may, under § 547(c)(4) , offset a preferential transfer to the extent he gave the debtor “new value” after the date of the transfer, and the “new value” remains unpaid. Charisma Inv. Co. v. Airport Sys., Inc. (In re Jet Florida Sys., Inc.), 841 F.2d 1082, 1083 (11th Cir.1988); 5 Alan N. Resnick & Hen-RY J. SommeR, Collier on Bankruptcy ¶ 547.04[4][e], at 547-68.4 (15th ed. rev. 2004). “New value” means, inter alia, “money or money’s worth in goods, services, or credit, ... but does not include an obligation substituted for an existing obligation.” 11 U.S.C. § 547(a)(2). The “new value” exception encourages creditors to deal with troubled businesses, Southern Tech. College, Inc. v. Hood, 89 F.3d 1381, 1384 (8th Cir.1996)(quoting Kroh Bros. Dev. Co. v. Continental Construction Engineers, Inc. (In re Kroh Bros. Dev. Co.), 930 F.2d 648, 651 (8th Cir.1991)); In re Jet Florida Sys., Inc., 841 F.2d at 1083; see Laker v. Vallette (In re Toyota of Jefferson, Inc.), 14 F.3d 1088, 1091 (5th Cir.1994), and promotes equality of treatment among eredi-tors. In re Jet Florida Sys., Inc., 841 F.2d at 1083-84. It recognizes that the “new value” effectively repays the earlier preference, and offsets the harm to the debtor’s other creditors. See In re Toyota of Jefferson, Inc., 14 F.3d at 1091; In re Kroh Bros. Dev. Co., 930 F.2d at 652; In re Jet Florida Sys., Inc., 841 F.2d at 1084. Accordingly, “the relevant inquiry under section 547(c)(4) is whether the new value replenishes the estate.” In re Kroh Bros. Dev. Co., 930 F.2d at 652; accord Southern Tech. College, Inc. v. Hood, 89 F.3d at 1384; In re Toyota of Jefferson, Inc., 14 F.3d at 1091-92. B. Motion For Judgment On Partial Findings At trial, Level-3 had the burden of proving the “new value” defense by a preponderance of the evidence. See 11 U.S.C. § 547(g); Cassirer v. Herskowitz (In re Schick), 234 B.R. 337, 348 (Bankr.S.D.N.Y.1999). In a non-jury trial, if a party with the burden of proving a claim or defense fails to establish his" }, { "docid": "18907345", "title": "", "text": "for the benefit of such creditor ... 11 U.S.C. § 547(c)(4) (emphasis supplied). The tortuous language of Section 547(c)(4)(B) has led many courts to paraphrase the statute to the effect that the “new value” must remain unpaid. In re Check Reporting Servs., Inc., 140 B.R. 425 (Bankr. W.D.Mich.1992), traces this paraphrase to In re Bishop, 17 B.R. 180 (Bankr.N.D.Ga.1982). The court in Bishop stated: For § 547(e)(4) to apply, three requirements must be met. First, the creditor must extend new value as defined in § 547(a)(2) as “money or ... new credit” after the challenged payment.... Secondly, the new value must be unsecured. Section 547(c)(4)(A).... Finally, the new value must go unpaid. Section 5i7(c)(ti(B). Bishop, 17 B.R. at 183 (emphasis supplied). The Bishop court’s requirement that new value must go unpaid was intended to address a problem dealt with more precisely by Section 547(c)(4)(B). That is, a creditor should not be able to assert that a transfer was “new value” when the estate was otherwise depleted by the debtor’s payment for new value. Check Reporting Servs., 140 B.R. at 433. That the new value “must remain unpaid” has become one of the elements of the Section 547(c)(4) defense. See, e.g., In re Formed Tubes, Inc., 46 B.R. 645, 646 (Bankr. E.D.Mich.1985); In re Keydata Corp., 37 B.R. 324, 328 (Bankr.D.Mass.1983); In re Saco Local Dev. Corp., 30 B.R. 870, 872 (Bankr.D.Me.1983). There is no Ninth Circuit authority addressing the issue of whether new value must remain unpaid. Most of the circuits enunciate a rule to the effect that new value must remain unpaid. See In re Kroh Bros. Dev. Co., 930 F.2d 648, 652-53 (8th Cir.1991); In re New York City Shoes, Inc., 880 F.2d 679, 680 (3d Cir.1989); In re Jet Florida Sys., Inc., 841 F.2d 1082, 1083 (11th Cir.1988); In re Prescott, 805 F.2d 719, 728 (7th Cir.1986). The most recent Court of Appeals case addressing the issue, In re Toyota of Jefferson, Inc., 14 F.3d 1088, 1093 n. 2 (5th Cir.1994) refers to these cases, then gives a more complete statement of the defense, including the requirement" }, { "docid": "18907346", "title": "", "text": "Servs., 140 B.R. at 433. That the new value “must remain unpaid” has become one of the elements of the Section 547(c)(4) defense. See, e.g., In re Formed Tubes, Inc., 46 B.R. 645, 646 (Bankr. E.D.Mich.1985); In re Keydata Corp., 37 B.R. 324, 328 (Bankr.D.Mass.1983); In re Saco Local Dev. Corp., 30 B.R. 870, 872 (Bankr.D.Me.1983). There is no Ninth Circuit authority addressing the issue of whether new value must remain unpaid. Most of the circuits enunciate a rule to the effect that new value must remain unpaid. See In re Kroh Bros. Dev. Co., 930 F.2d 648, 652-53 (8th Cir.1991); In re New York City Shoes, Inc., 880 F.2d 679, 680 (3d Cir.1989); In re Jet Florida Sys., Inc., 841 F.2d 1082, 1083 (11th Cir.1988); In re Prescott, 805 F.2d 719, 728 (7th Cir.1986). The most recent Court of Appeals case addressing the issue, In re Toyota of Jefferson, Inc., 14 F.3d 1088, 1093 n. 2 (5th Cir.1994) refers to these cases, then gives a more complete statement of the defense, including the requirement that “the new value has not been repaid with an otherwise unavoidable transfer.” The court in In re Meredith Manor, Inc., 902 F.2d 257, 259 (4th Cir.1990), does not address the issue, but in adopting the rule in In re Thomas W. Garland, Inc., 19 B.R. 920 (Bankr.E.D.Mo.1982), the Meredith Manor court indicates that a debtor’s transfers after a creditor’s new value payments need not be tied to particular payments. The rule that the “new value must go unpaid” is the majority rule. In re Braniff, Inc., 154 B.R. 773, 784 (Bankr.M.D.Fla.1993). However, the “emerging trend” is to the contrary. In re Ladera Heights Community Hosp., Inc., 152 B.R. 964, 968 (Bankr. C.D.Cal.1993). It is this emerging rule that Slide-Co. urges this court to adopt. Two of the recent cases from within the Ninth Circuit adopt the rule that new value need not remain unpaid. In re Ladera Heights Community Hosp., Inc., 152 B.R. 964, 968 (Bankr.C.D.Cal.1993); In re IRFM, Inc., 144 B.R. 886, 892-93 (Bankr.C.D.Cal. 1992). I disagree with such a rule. In so" }, { "docid": "21577446", "title": "", "text": "support the exception. First, without the exception, a creditor who continues to extend credit to the debtor, perhaps in implicit reliance on prior payments, would merely be increasing his bankruptcy loss. Id. at 300. Second, the limited protection provided by the subsequent advance rule encourages creditors to continue their revolving credit arrangements with financially troubled debtors, potentially helping the debtor avoid bankruptcy altogether. Id. at 300-01. Protecting the creditor who extends “revolving credit” to the debtor is not unfair to the other creditors of the bankrupt debtor because the preferential payments are replenished by the preferred creditor’s extensions of new value to the debtor. Kroh Bros. Dev. Co. v. Continental Constr. Eng’rs, Inc. (In re Kroh Bros. Dev. Co.), 930 F.2d 648, 652 (8th Cir.1991). We turn next to the elements of the § 547(c)(4) exception itself. Commentators have noted that “[tjhere are two keys to the application of (e)(4). The creditor must have given (1) ‘new value’ and must have done so (2) after the preferential transfer.” 1 David G. Epstein et al, Bankeuptcy § 6-34, at 628 (1992). Two other caveats must be observed. The new value given by the creditor must not be secured by “an otherwise unavoidable security interest,” § 547(c)(4)(A), and the debt- or must not have made “an otherwise unavoidable transfer to or for the benefit of such creditor” on account of the new value, § 547(e)(4)(B). The transfers in this ease may be summarized as follows. Date Preferential Payment New Value Oct. 1989 $30,830.75 Jan. 9, 1990 $82,993.00 Jan. 12-19, 1990 $82,993.00 Feb. 1990 $90,169.00 Mar. 1990 $90,169.00 Under the “net result rule,” which was applied by some courts under pre-Code bankruptcy law, bankruptcy courts would simply total the preferential payments and the advances of new value and offset them against each other. 1 Epstein, supra, at 629. Because § 547(c)(4) requires the new value to be given by the creditor after the preferential transfer to the creditor, its scope is narrower in operation than the net result rule. Id.; see also Waldschmidt v. Ranier (In re Fulghum Constr. Corp.), 706 F.2d 171," }, { "docid": "21577452", "title": "", "text": "592, 596 (Bankr.M.D.Fla.1993); Mosier v. Ever-Fresh Foods Co. (In re IRFM, Inc.), 144 B.R. 886, 889-93 (Bankr.C.D.Cal.1992); Allied Companies, Inc. v. Broughton Foods Co. (In re Allied Companies, Inc.), 155 B.R. 739, 743-44 (Bankr.S.D.Ind.1992); In re Check Reporting Services, 140 B.R. at 432, 439. The subsequent advances following the first two preferential payments were repaid, but with preferences that were not “otherwise unavoidable.” The result reached by the court below is therefore correct. IV. CONCLUSION For the foregoing reasons, the judgment of the court below is AFFIRMED. . The appellee, Vallette, argues in her brief that the court below erred in holding that the \"contemporaneous exchange” and \"ordinary course of business” exceptions did not apply. We decline to consider her arguments because, absent a cross appeal, the appellee cannot attack the decision of the court below with a view either to enlarging her own rights thereunder or lessening the rights of her adversary. Morley Constr. Co. v. Maryland Casualty Co., 300 U.S. 185, 191, 57 S.Ct. 325, 327, 81 L.Ed. 593 (1937); Securities and Exch. Comm'n v. AMX, Int'l, Inc., 7 F.3d 71, 74 n. 4 (5th Cir.1993); Speaks v. Trikora Lloyd P.T., 838 F.2d 1436, 1439 (5th Cir.1988). . Some of our sister circuits have, in dicta, described § 547(c)(4)(B) as requiring the subsequent advance to go \"unpaid.\" See In re Kroh Brothers, 930 F.2d at 652; New York City Shoes, Inc. v. Bentley Int'l, Inc. (In re New York City Shoes, Inc.), 880 F.2d 679, 680 (3d Cir.1989); Charisma Inv. Co., N.V. v. Airport Sys., Inc. (In re Jet Florida Sys., Inc.), 841 F.2d 1082, 1083 (11th Cir.1988); In re Prescott, 805 F.2d 719, 731 (7th Cir.1986). Although this description may be an adequate shorthand description of § 547(c)(4)(B), a more complete statement of the (c)(4) exception would be that a creditor who raises it has the burden of proving that (1) new value was extended after the preferential payment sought to be avoided, (2) the new value is not secured with an otherwise unavoidable security interest, and (3) the new value has not been repaid with an" }, { "docid": "6905248", "title": "", "text": "history of the Bankruptcy Code. The following analysis of the language of section 547(c)(4) demonstrates why Mosier’s position is erroneous. A Section 547(c)(4) of the Bankruptcy Code provides: The trustee may not avoid under this section a transfer which— (4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor— (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor[.] Courts and commentators agree that the exception contains two key elements. First, the creditor must give unsecured new value and, second, this new value must be given after the preferential transfer. See In re Fulghum Constr. Corp., 706 F.2d 171, 172 (6th Cir.) cert. denied, 464 U.S. 935, 104 S.Ct. 342, 343, 78 L.Ed.2d 310 (1983). The majority of courts have also adopted a short hand approach to section 547(c)(4)(B) and hold that section 547(c)(4) contains a third element, that the new value must remain unpaid. The Eighth Circuit recently followed this approach in In re Kroh Bros. Dev. Co., 930 F.2d 648, 653 (8th Cir.1991) (creditor who has been paid for the new value by the debtor may not assert a new value defense). See also In re New York City Shoes, Inc., 880 F.2d 679, 670 (3d Cir.1989); In re Jet Florida Sys., Inc., 841 F.2d 1082, 1083 (11th Cir.1988); In the Matter of Prescott, 805 F.2d 719, 731 (7th Cir.1986). The rationale for this position is (1) if new value has been repaid by the debtor, the estate has not been replenished and; (2) the creditor is permitted the double benefit of a new value defense and the repayment of the new value. See Kroh Bros., 930 F.2d at 652. However, focusing only on the issue of whether the new value is unpaid may lead to some absurd results, as Mosier’s position demonstrates. As a result, an emerging trend has developed where a few courts" }, { "docid": "4584048", "title": "", "text": "(In re Jet Florida Sys., Inc.), 841 F.2d 1082, 1083 (11th Cir.1988); see Laker v. Vallette (In re Toyota of Jefferson, Inc.), 14 F.3d 1088, 1091 (5th Cir.1994); see generally 5 Alan N. Resnick & Henry J. Sommer, Collier on Bankruptcy ¶ 547.04[4][b], at 547-65 (16th ed. 2011), and promotes equality of treatment among creditors. Jet Florida Sys., Inc., 841 F.2d at 1083-84. It recognizes that the new value effectively repays the earlier preference, and offsets the harm to the debtor’s other creditors. See Toyota of Jefferson, Inc., 14 F.3d at 1091; Kroh Bros., 930 F.2d at 652; Jet Florida Sys., Inc., 841 F.2d at 1084. Accordingly, “the relevant inquiry under section 547(c)(4) is whether the new value replenishes the estate.” . Kroh Bros., 930 F.2d at 652; accord Southern Technical Coll, Inc., 89 F.3d at 1384; Toyota of Jefferson, Inc., 14 F.3d at 1091-92; Savage & Assocs., P.S. v. Level(S) Commc’ns (In re Teligent, Inc.), 315 B.R. 308, 315 (Bankr.S.D.N.Y. 2004). The party relying on the defense must show that it gave unsecured new value after the preferential transfer. Mosier v. Ever-Fresh Food Co. (In re IRFM, Inc.), 52 F.3d 228, 231 (9th Cir.1995). This much is clear. It is also said to be the “majority rule” that the new value must remain unpaid. E.g., id. (discussing the majority rule and emerging trend). The rationale for the majority rule is that if the debtor pays for the new value, the estate has not been replenished and the creditor receives the double benefit of a new value defense and the payment for the new value. Id.; Kroh Bros., 930 F.2d at 652 (“If the new value advanced has been paid for by the debtor, the estate is not replenished and the preference unfairly benefits a creditor.”). The error in reading the so-called majority rule too broadly was explained by Judge Tina L. Brozman of this Court in Official Committee of Unsecured Creditors of Maxwell Newspapers v. Travelers Indemnity Co., (In re Maxwell Newspapers), 192 B.R. 633 (Bankr.S.D.N.Y.1996). First, most of these courts that identified the majority rule did so in" }, { "docid": "10213223", "title": "", "text": "the estate during the preference period. Third, § 547(c)(4)(B) does not require new value to remain unpaid, but rather acts only as a safeguard against double counting. Disputing Garland’s third principle, the Committee contends that Section 547(c)(4) does require that new value remain unpaid. The Ninth Circuit has not addressed this issue. The three circuits that have directly ruled are split: the Seventh and Eighth Circuits require the new value to remain unpaid, In re Kroh Bros. Dev. Co., 930 F.2d 648, 652-53 (8th Cir.1991); In re Prescott, supra, 805 F.2d 719, 728 (7th Cir. 1986), while the Fourth Circuit does not, In re Meredith Manor, Inc., supra, 902 F.2d. 257, 258-59 (4th Cir.1990). None of these cases, however, provides a detailed analysis of the issue, instead simply treating the proposition as well-established. The majority of lower court decisions adopt, without much discussion, the view that the new value must remain unpaid. See, e.g., In re Formed Tubes, Inc., 46 B.R. 645, 646-47 (Bankr.E.D.Mich.1985); In re Keydata Corp., 37 B.R. 324, 328 (Bankr.D.Mass. 1983); In re Saco Local Dev. Corp., 30 B.R. 870, 872 (Bankr.D.Me.1983); In re Bishop, 17 B.R. 180, 183 (Bankr.N.D.Ga. 1982). The trend of more recent cases, however, is in the opposite direction: holding that new value need not remain unpaid based upon exhaustive analysis of the underpinnings of the legislative and statutory framework. See, e.g., In re IRFM, Inc., supra, 144 B.R. 886, 892-93 (Bank.C.D.Cal. 1992); In re Check Reporting Services, Inc., 140 B.R. 425, 432 (Bankr.W.D.Mich. 1992). These cases follow the earlier minority rule of In re Paula Saker & Co., 53 B.R. 630, 634 (Bankr.S.D.N.Y.1985), and In re Isis Foods, Inc., 39 B.R. 645, 653 (W.D.Mo.1984). This Court finds most persuasive the cogent analysis set forth by Bankruptcy Judge John Ryan of this district in In re IRFM, Inc., supra, which builds upon the review and analysis set forth in Check Reporting, among other cases, in concluding that new value need not remain unpaid. In the IRFM preference action, the Chapter 7 trustee argued, as the Committee argues here, that the creditor’s assertion of" }, { "docid": "18907347", "title": "", "text": "that “the new value has not been repaid with an otherwise unavoidable transfer.” The court in In re Meredith Manor, Inc., 902 F.2d 257, 259 (4th Cir.1990), does not address the issue, but in adopting the rule in In re Thomas W. Garland, Inc., 19 B.R. 920 (Bankr.E.D.Mo.1982), the Meredith Manor court indicates that a debtor’s transfers after a creditor’s new value payments need not be tied to particular payments. The rule that the “new value must go unpaid” is the majority rule. In re Braniff, Inc., 154 B.R. 773, 784 (Bankr.M.D.Fla.1993). However, the “emerging trend” is to the contrary. In re Ladera Heights Community Hosp., Inc., 152 B.R. 964, 968 (Bankr. C.D.Cal.1993). It is this emerging rule that Slide-Co. urges this court to adopt. Two of the recent cases from within the Ninth Circuit adopt the rule that new value need not remain unpaid. In re Ladera Heights Community Hosp., Inc., 152 B.R. 964, 968 (Bankr.C.D.Cal.1993); In re IRFM, Inc., 144 B.R. 886, 892-93 (Bankr.C.D.Cal. 1992). I disagree with such a rule. In so doing, I rely primarily on the analysis of section 547(c)(4)(B) in In re Check Reporting Servs., 140 B.R. 425 (Bankr.W.D.Mich.1992). Given the language of section 547(c)(4)(B), it is no wonder that courts have chosen to paraphrase it. The statute contains a double negative and the term “an otherwise unavoidable transfer.” Until recently, very few courts have parsed subsection (B) of section 547(c)(4) in order to apply the actual language of the statute. The court in Check Reporting Servs. painstakingly did so. As noted above, the court in Check Reporting Servs. traced the “rule” that new value must go unpaid to In re Bishop, 17 B.R. 180 (Bankr.N.D.Ga.1982). As do most of the cases addressing the “new value” defense, Bishop involved a running account. The new value was short-term, unsecured loans provided by creditor Trust Company Bank. The transfers from the debtor and the new value provided by the creditor were as follows: After the 9/27/79 preferential payment of $18,418.50, the creditor provided $38,440.80 in new value. However, since the debtor paid $21,628.16 (the 11/28/79 and" }, { "docid": "6905249", "title": "", "text": "section 547(c)(4) contains a third element, that the new value must remain unpaid. The Eighth Circuit recently followed this approach in In re Kroh Bros. Dev. Co., 930 F.2d 648, 653 (8th Cir.1991) (creditor who has been paid for the new value by the debtor may not assert a new value defense). See also In re New York City Shoes, Inc., 880 F.2d 679, 670 (3d Cir.1989); In re Jet Florida Sys., Inc., 841 F.2d 1082, 1083 (11th Cir.1988); In the Matter of Prescott, 805 F.2d 719, 731 (7th Cir.1986). The rationale for this position is (1) if new value has been repaid by the debtor, the estate has not been replenished and; (2) the creditor is permitted the double benefit of a new value defense and the repayment of the new value. See Kroh Bros., 930 F.2d at 652. However, focusing only on the issue of whether the new value is unpaid may lead to some absurd results, as Mosier’s position demonstrates. As a result, an emerging trend has developed where a few courts have reached the contrary result and hold that new value need not remain unpaid. See In re Ladera Heights Comm. Hosp., Inc., 152 B.R. 964, 968 (Bankr.C.D.Cal.1993). However, an even more recent trend has developed where courts and commentators have rejected the short hand approach and have undertaken a more thorough analysis of the language of section 547(c)(4)(B). These cases reason that the numerous decisions focusing on the narrow issue of whether the new value remains unpaid are incomplete and inaccurate. In the Matter of Toyota of Jefferson, Inc., 14 F.3d 1088, 1093 n. 2 (5th Cir.1994); In re PNP Holdings Corp., 167 B.R. 619, 629 (Bankr.W.D.Wash.1994); In re Check Reporting Servs., Inc., 140 B.R. 425, 431-34 (Bankr.W.D.Mich.1992). According to this view, the proper inquiry directed by section 547(c)(4)(B) is whether the new value has been paid for by “an otherwise unavoidable transfer.” In the Matter of Toyota of Jefferson, 14 F.3d at 1093 n. 2. This inquiry follows the Kroh Bros, rationale that a creditor should not get double credit for an advance of" }, { "docid": "6905247", "title": "", "text": "the trustee has established that a transfer is a preference, a creditor may assert a defense to the preference under 11 U.S.C; § 547(c). Ever-Fresh contends that it is entitled to a “new value” defense under section 547(e)(4). Ever-Fresh asserts that after each preferential transfer, it gave IRFM new value and thus may retain the transfers by IRFM. Mosier argues that in order to qualify for a new value defense a creditor must prove (1) the new value was given to the debtor after the preferential transfer; (2) that the new value is unsecured; and (3) that it remain unpaid. Ever-Fresh has satisfied the first two elements. The parties contest the operation of the third. For support of his position, Mosier relies upon language in cases to the effect that new value must remain unpaid. While this is the literal holding of these cases, these eases did not intend to reach the result urged by Mosier in this case. More importantly, Mosier’s argument is contrary to both the language of section 547(c)(4) and the legislative history of the Bankruptcy Code. The following analysis of the language of section 547(c)(4) demonstrates why Mosier’s position is erroneous. A Section 547(c)(4) of the Bankruptcy Code provides: The trustee may not avoid under this section a transfer which— (4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor— (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor[.] Courts and commentators agree that the exception contains two key elements. First, the creditor must give unsecured new value and, second, this new value must be given after the preferential transfer. See In re Fulghum Constr. Corp., 706 F.2d 171, 172 (6th Cir.) cert. denied, 464 U.S. 935, 104 S.Ct. 342, 343, 78 L.Ed.2d 310 (1983). The majority of courts have also adopted a short hand approach to section 547(c)(4)(B) and hold that" }, { "docid": "10220638", "title": "", "text": "new value must remain unpaid. In re Jet Florida System, Inc., 841 F.2d 1082 (11th Cir.1988). The Trustee contends that § 547(c)(4) is not available to the Defendant as a defense in any instance in which the creditor’s new value has been repaid by the Debtor. This new value, otherwise known as a subsequent advance, may be used as a defense to offset preferences payments, but only if the new value remains unpaid. Preference payments, the shipment of goods, if any, are viewed as discrete transactions and not netted out for the entire ninety day preference period. In essence, a creditor is entitled to a set-off against any preference payment if goods were shipped and not paid for in the next payment transfer. In re Jolly “N”, Inc., 122 B.R. 897 (Bankr.D.N.J.1991). This set-off method supports the underlying policy of consideration of § 547(c)(4) which is to encourage trade creditors to continue to deal with troubled businesses. In re New York City Shoes, Inc., 880 F.2d 679, 680 (3rd Cir.1989). [5] Smith Brothers contends that new value need not remain unpaid as long as the estate is not depleted. In re Check Reporting Services, Inc., 140 B.R. 425, 22 B.C.D. 1568 (Bankr.W.D.Mich.1992); In re IRFM, Inc., 144 B.R. 886 (Bankr.C.D.Cal. 1992). In essence, Smith Brothers urges an application of the “net result” rule. See In re Rustia, 20 B.R. 131 (Bankr.S.D.N.Y. 1982); 4 Collier On Bankruptcy, § 547.12, at 547-58 (15th ed. 1987). Under this rule, only the creditor’s improved position resulting from payments greater than the actual shipment of goods to a debtor during the ninety day preference period is considered a voidable preference. Collier at 547-58. The net result is no longer viable as a rule for determining preferential transfers. In re Fulghum Construction Corporation, 706 F.2d 171 (6th Cir.1983), cert. denied 464 U.S. 935; 104 S.Ct. 342, 78 L.Ed.2d 310 (1983). Having considered the authorities which are most persuasive to this Court, Jet Florida System Inc., and Jolly “N”, Inc., supra, this Court is satisfied that a creditor who received preferential payments cannot get credit for any" }, { "docid": "21577453", "title": "", "text": "Comm'n v. AMX, Int'l, Inc., 7 F.3d 71, 74 n. 4 (5th Cir.1993); Speaks v. Trikora Lloyd P.T., 838 F.2d 1436, 1439 (5th Cir.1988). . Some of our sister circuits have, in dicta, described § 547(c)(4)(B) as requiring the subsequent advance to go \"unpaid.\" See In re Kroh Brothers, 930 F.2d at 652; New York City Shoes, Inc. v. Bentley Int'l, Inc. (In re New York City Shoes, Inc.), 880 F.2d 679, 680 (3d Cir.1989); Charisma Inv. Co., N.V. v. Airport Sys., Inc. (In re Jet Florida Sys., Inc.), 841 F.2d 1082, 1083 (11th Cir.1988); In re Prescott, 805 F.2d 719, 731 (7th Cir.1986). Although this description may be an adequate shorthand description of § 547(c)(4)(B), a more complete statement of the (c)(4) exception would be that a creditor who raises it has the burden of proving that (1) new value was extended after the preferential payment sought to be avoided, (2) the new value is not secured with an otherwise unavoidable security interest, and (3) the new value has not been repaid with an otherwise unavoidable transfer. Cf. In re Prescott, 805 F.2d at 731 (\"The creditor that raises a ‘subsequent advance’ defense has the burden of establishing that new value was extended, which remains unsecured and unpaid after the preferential transfer.”)." }, { "docid": "15708932", "title": "", "text": "because the creditor’s provision of the subsequent goods or services has replenished the estate. Kroh Bros. Dev. Co. v. Continental Constr. Eng’r (In re Kroh Bros.), 930 F.2d 648, 652 (8th Cir.1991). In order to prevail on a subsequent new value defense under § 547(c)(4), the creditor must establish that: (1) the creditor received a transfer that is otherwise avoidable as a preference under § 547(b); (2) after receiving the preferential transfer, the creditor advanced new value to the debtor on an unsecured basis; and (3) the debtor did compensate the creditor with an “otherwise unavoidable” transfer for the new value as of the petition date. Kroh Bros., 930 F.2d at 652 (quoting New York City Shoes v. Bentley Int’l (In re New York City Shoes), 880 F.2d 679, 680 (3d Cir.1989)). Here, as illustrated above, it is undisputed that all of the Preference Payments to Application are otherwise avoidable as a preference under § 547(b). Also, there is no dispute that Application provided services to Debtors after receiving some of the Preference Payments on an unsecured basis. Further, because the payments Debtors remitted to Application on account of the subsequently provided services were not made in the ordinary course of business between Application and Debtors under § 547(c)(2)(B) and were preferential transfers under § 547(b), there is no dispute that the payments for the subsequently provided services are “otherwise avoidable” payments as required by § 547(c)(4)(B). Jones Truck Lines, Inc. v. Central States Pension Fund (In re Jones Truck Lines, Inc.), 130 F.3d 323, 329 (8th Cir.1997). Thus, the Court must address whether Application advanced new value to Debtor and if so, how much of the new value § 547(c)(4) protects from the Plan Administrator’s avoiding powers. The Court finds that Application provided Debtors with $44,665 of new value subsequent to receiving some of the individual Preference Payments. Accordingly, Plan Administrator cannot avoid the Preferential Transfers with respect to the $44,665 of subsequent new value. 2. Application’s Provision of Services under the Agreement Constitutes “New Value” under § 51*7(c)(L). The first issue the Court must determine is whether the" }, { "docid": "4584049", "title": "", "text": "value after the preferential transfer. Mosier v. Ever-Fresh Food Co. (In re IRFM, Inc.), 52 F.3d 228, 231 (9th Cir.1995). This much is clear. It is also said to be the “majority rule” that the new value must remain unpaid. E.g., id. (discussing the majority rule and emerging trend). The rationale for the majority rule is that if the debtor pays for the new value, the estate has not been replenished and the creditor receives the double benefit of a new value defense and the payment for the new value. Id.; Kroh Bros., 930 F.2d at 652 (“If the new value advanced has been paid for by the debtor, the estate is not replenished and the preference unfairly benefits a creditor.”). The error in reading the so-called majority rule too broadly was explained by Judge Tina L. Brozman of this Court in Official Committee of Unsecured Creditors of Maxwell Newspapers v. Travelers Indemnity Co., (In re Maxwell Newspapers), 192 B.R. 633 (Bankr.S.D.N.Y.1996). First, most of these courts that identified the majority rule did so in dicta. Id. at 639. Second, the majority rule ignores § 547(c)(4)(B) which states that the defense is available if the debtor “did not make an otherwise unavoidable transfer to or for the benefit of such creditor.” Id. Obviously, this phrase implies some payments will not deprive the transferee of the new value defense. The double negative in § 547(c)(4)(B) is unnecessarily confusing, but the statute means that the new value defense is available, despite payment, if the payment was an avoidable transfer, i.e., a preference or fraudulent transfer. Under those circumstances, the creditor must return the second payment, and “[tjhere is no logical reason to distinguish between a creditor that was paid by an avoidable transfer and one that was never paid at all.” Maxwell Newspapers, 192 B.R. at 639; accord Jones Truck Lines, 130 F.3d at 329; Bogdanov v. Avnet, Inc., 10-CV-543-SM, 2011 WL 4625698, at *5 (D.N.H. Sept. 30, 2011) (same). This interpretation is consistent with the underlying policies of the new value exception to encourage creditors to continue to deal with a" }, { "docid": "18490205", "title": "", "text": "and treats creditors fairly. See In re New York City Shoes, 880 F.2d at 681; In re Almarc Mfg., 62 B.R. at 688-89. Thus, we join those courts holding that, for purposes of section 547(c)(4), payment by check constitutes a transfer upon delivery, not upon payment. The district court correctly calculated the new value beginning after December 13, 1986. B. Payment for new value Kroh Brothers also argues that Continental cannot rely on section 547(c)(4) because Continental was paid for the services constituting the new value. Both the bankruptcy and district court relied on In re Isis Foods, 39 B.R. at 653, as controlling au thority for the proposition that the application of section 547(c)(4) is not “limited to new value that is unpaid.” See In re Kroh Bros., 114 B.R. at 661; In re Kroh Bros., 104 B.R. at 195. The majority of courts, however, hold that a creditor who has received payment from the debtor for new value cannot rely on section 547(c)(4). In In re New York City Shoes, the Third Circuit set forth the requirements of section 547(c)(4): First, the creditor must have received a transfer that is otherwise avoidable as a preference under § 547(b). Second, after receiving the preferential transfer, the preferred creditor must advance “new value” to the debtor on an unsecured basis. Third, the debtor must not have fully compensated the creditor for the “new value” as of the date that it filed its bankruptcy petition. In re New York City Shoes, 880 F.2d at 680. Accord Charisma Investment Co. v. Airport Sys. (In re Jet Florida Sys.), 841 F.2d 1082, 1088 (11th Cir.1988) (same); In re Prescott, 805 F.2d 719, 728, 731 (7th Cir.1986) (“The creditor that raises a ‘subsequent advance’ defense has the burden of establishing that new value was extended, which remains unsecured and unpaid after the preferential transfer.”); Iannacone v. Klement Sausage Co. (In re Hancock-Nelson Mercantile Co.), 122 B.R. 1006, 1016 (Bankr.D.Minn.1991) (“the great majority of courts addressing the issue have concluded that the Isis Foods holding ‘seems contrary to common sense and the clear intent of" }, { "docid": "10213222", "title": "", "text": "however, contains explicit timing requirements absent from the “net result” rule. It specifies that the new value provided by the creditor must come after the transfer by the debtor, a brand-new requirement. Its inclusion in the statute belies any suggestion that Section 574(c)(4) directly codified that rule. This material difference in the language of Section 547(c)(4) means that only the spirit of the “net result” rule survived the enactment of the Bankruptcy Code. See Garland, supra, 19 B.R. at 925-28. B. Subsequent Advance Rule Does Not Require New Value to Remain Unpaid. As summarized in In re IRFM, Inc., supra, 144 B.R. at 892, three basic principles governing interpretation of Section 547(c)(4) can be derived from Garland: First, § 547(c)(4)’s subsequent advance rule makes preferential transfers avoidable until offset by subsequent advances of new value. Second, Congress drafted § 547(c)(4) to retain the net result rule’s policy of encouraging creditors to continue doing business with troubled debtors by protecting transfers received by creditors from preference actions to the extent goods provided by such creditors replenish the estate during the preference period. Third, § 547(c)(4)(B) does not require new value to remain unpaid, but rather acts only as a safeguard against double counting. Disputing Garland’s third principle, the Committee contends that Section 547(c)(4) does require that new value remain unpaid. The Ninth Circuit has not addressed this issue. The three circuits that have directly ruled are split: the Seventh and Eighth Circuits require the new value to remain unpaid, In re Kroh Bros. Dev. Co., 930 F.2d 648, 652-53 (8th Cir.1991); In re Prescott, supra, 805 F.2d 719, 728 (7th Cir. 1986), while the Fourth Circuit does not, In re Meredith Manor, Inc., supra, 902 F.2d. 257, 258-59 (4th Cir.1990). None of these cases, however, provides a detailed analysis of the issue, instead simply treating the proposition as well-established. The majority of lower court decisions adopt, without much discussion, the view that the new value must remain unpaid. See, e.g., In re Formed Tubes, Inc., 46 B.R. 645, 646-47 (Bankr.E.D.Mich.1985); In re Keydata Corp., 37 B.R. 324, 328 (Bankr.D.Mass. 1983); In" } ]

[ { "docid": "22727109", "title": "", "text": "administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U. S. 138, 142 (1973). The task of the reviewing court is to apply the appropriate APA standard of review, 5 U. S. C. § 706, to the agency decision based on the record the agency presents to the reviewing court. Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 (1971). If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry. We made precisely this point last Term in a case involving review under the Hobbs Act. FCC v. ITT World Communications, Inc., 466 U. S. 463, 468-469 (1984); see also Camp v. Pitts, supra. Moreover, a formal hearing before the agency is in no way necessary to the compilation of an agency record. As the actions of the Commission in compiling a 547-page record in this case demonstrate, agencies typically compile records in the course of informal agency action. The APA specifically contemplates judicial review on the basis of the agency record compiled in the course of informal agency action in which a hearing has not occurred. See 5 U. S. C. §§ 551(13), 704, 706. The factfinding capacity of the district court is thus typically unnecessary to judicial review of agency decisionmak-ing. Placing initial review in the district court does have the negative effect, however, of requiring duplication of the identical task in the district court and in the court of appeals; both courts are to decide, on the basis of the record the agency provides, whether the action passes muster under the appropriate APA standard of review. One" } ]

[ { "docid": "8049539", "title": "", "text": "and its Motion for Summary Judgment. IMS claimed that the affidavits, while not contained in the agency record, merely elaborated on information that was in the record and should therefore be permitted. The district court granted SBA’s motion to strike the affidavits. We affirm the district court’s decision. It is a widely accepted principle of administrative law that the courts base their review of an agency’s actions on the materials that were before the agency at the time its decision was made. See Puerto Rico Higher Educ. Assistance Corp. v. Riley, 10 F.3d 847, 850-51 (D.C.Cir.1993) (“We base our review of the Department’s actions on the materials that were before the Department at the time its decision was made.”) (citation omitted); Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C.Cir.1984) (“If a court is to review an agency’s action fairly, it should have before it neither more nor less information than did the agency when it made its decision.”). As the Supreme Court noted in 1985, “The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)); see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per cu-riam) (“In applying [the arbitrary and capricious] standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.”). It is not necessary that the agency hold a formal hearing in compiling its record, for “[t]he APA specifically contemplates judicial review on the basis of the agency record compiled in the course of informal agency action in which a hearing has not occurred.” Florida Power, 470 U.S. at 744, 105 S.Ct. at 1607. Both parties agree that the affidavits" }, { "docid": "8861269", "title": "", "text": "not from a federal government website. The Court denied the motion but took judicial notice of the fact that this air show was scheduled, for the limited purpose of balancing the respective harms in determining whether injunctive relief was warranted. Three days after the hearing, the Court issued an order denying Gulf Group’s motion and granting the Corps’s motion. This opinion explains that decision. II. DISCUSSION A. Standard of Review in a Bid Protest Case Post-award bid protests are heard by this Court under the Tucker Act, as amended by the ADRA. This provision requires our court to follow the APA standards of review: “In any action under this subsection, the courts shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5.” 28 USC § 1491(b)(4). The Supreme Court had determined, long before the 1996 enactment of the ADRA, how it expects lower courts to conduct APA review of informal agency decisions. The Court in Overton Park held that the de novo review standard contained in 5 USC § 706(2)(F) does not usually apply in such circumstances, 401 U.S. at 415, 91 S.Ct. 814. Instead, courts are to employ the standard of 5 USC § 706(2)(A): whether the agency’s acts were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Overton Park, 401 U.S. at 416, 91 S.Ct. 814; see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). The “focal point for judicial review should be the administrative record already in existence,” id., and this applies even where, as here, the matter being reviewed was not the product of a formal hearing. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). A motion for judgment on the administrative record, under RCFC 56.1, differs from a motion for summary judgment under RCFC 56. See, e.g., Tech Systems, Inc. v. United States, 50 Fed.Cl 216, 222 (2001). Summary judgment may be granted only if “there is no genuine issue as to any material" }, { "docid": "9412465", "title": "", "text": "this court may rely upon such a decision for general guidance to the extent it is reasonable and persuasive in light of the administrative record. Bellevue, 15 Cl.Ct. at 134 n. 3. Thus, it may be an aid to the court in better understanding and evaluating the procurement. Health Sys., 26 Cl.Ct. at 1325 (quoting Technology for Communications, Int’l, Inc. v. Garrett, 783 F.Supp. 1446, 1449 n. 6 (D.D.C.1992)). Although the court’s review is de novo with respect to the GAO recommendation, it is not de novo in the sense that the court may put itself into the agency’s position in deciding to whom the award should be made. Although the inquiry is to be searching, it does not permit the court to substitute its judgment for that of the agency. Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416-20, 91 S.Ct. 814, 824-25, 28 L.Ed.2d 136 (1971). Rather, the standard of review is whether the decision below was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). The court’s inquiry is therefore based on an examination of the “whole record” before the agency; that is, all the material that was developed and considered by the agency in making its decision. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). The focal point for judicial review “should be the administrative record already in existence, not some new record made initially by the reviewing court.” Id. See also Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743 — 14, 105 S.Ct. 1598, 1606-07, 84 L.Ed.2d 643 (1985). For that reason, “post hoc” rationalizations by the agency are afforded little weight. See Citizens to Preserve Overton Park, 401 U.S. at 419, 91 S.Ct. at 825. A court reviewing an agency decision under the APA standard may, however, consider “extra-record” evidence in limited situations, such as those identified in Esch v. Yeutter, 876 F.2d 976 (D.C.Cir.1989): (1) when agency action is not adequately explained in the record before the court; (2) when the agency" }, { "docid": "1444842", "title": "", "text": "amended complaint alleges that plaintiffs “seek judicial review of final agency action in approving” the four timber sales. Counsel for the Forest Service advised at oral argument that approximately three-fourths of road work and timber harvesting in the four sale areas is now completed. The Forest Service approved the timber sales acting under NFMA. That Act “provides the mechanism for obtaining judicial review.” See Defenders of Wildlife v. Administrator, E.P.A., 882 F.2d 1294, 1303 (8th Cir.1989). Though the Wildlife Association argues that the timber sales violate no less than six substantive federal statutes, it persistently fails to relate those arguments to the standard for judicial review set forth in the Administrative Procedure Act, which provides that this type of final agency action may be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-15, 91 S.Ct. 814, 822-23, 28 L.Ed.2d 136 (1971); 5 U.S.C. § 706(2)(A). Thus, we deal here primarily with a single cause of action for APA review—not, as the Wildlife Association pleaded, with multiple statutory claims for relief. II. The Record on Review. APA review of agency action is normally confined to the agency’s administrative record. See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). If the agency record is for some reason inadequate, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985). When as here there is a contemporaneous administrative record and no need for additional explanation of the agency decision, “there must be a strong showing of bad faith or improper behavior” before the reviewing court may permit discovery and evidentiary supplementation of the administrative record. Overton Park, 401 U.S. at 420, 91 S.Ct. at 825-26; see Cronin v. United States Dep’t of Agrie., 919 F.2d 439, 444 (7th Cir.1990); Maxey v. Kadrovach, 890 F.2d 73, 77 (8th Cir.1989), cert. denied," }, { "docid": "17272594", "title": "", "text": "reviewing court shall ... (2) hold unlawful and set aside agency action, findings, and conclusions found to be — [IT] (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; [11] (B) contrary to constitutional right, power, privilege, or immunity; [11] (C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right; [11] (D) without observance of procedure required by law; [II] (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or [H] (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. 5 U.S.C. § 706. Based on an apparent misreading of the legislative history, see Gulf Group, Inc. v. United States, 61 Fed.Cl. 338, 350 n. 25 (2004), the Supreme Court had determined, before the 1996 enactment of the ADRA, that the de novo review standard contained in 5 U.S.C. § 706(2)(F) does not usually apply in review of informal agency decisions — decisions, that is, such as procurement awards. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Instead, courts are to employ the standard of 5 U.S.C. § 706(2)(A): whether the agency’s acts were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Overton Park, 401 U.S. at 416, 91 S.Ct. 814 (citation omitted); see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). The “focal point for judicial review should be the administrative record already in existence,” id., and this applies even where, as here, the matter being reviewed was not the product of a formal hearing. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct." }, { "docid": "21769114", "title": "", "text": "“an agency’s refusal to consider evidence bearing on the issue before it constitutes arbitrary agency action within the meaning of § 706,” as does ignoring “evidence contradicting its position.” Butte Cty., 613 F.3d at 194. As the D.C. Circuit explained, an agency decision “would be arbitrary and capricious” if it is not “supported by substantial evidence” because “ ‘it is impossible to conceive of a ‘nonarbitrary’ factual judgment supported only by evidence that is not substantial in the APA sense.’ ” Safe Extensions, Inc. v. FAA, 509 F.3d 593, 604 (D.C. Cir. 2007) (quoting ADPSO, 745 F.2d at 684)). Consequently, when assessing whether agency action is arbitrary or capricious, “in their application to the requirement of factual support[,] the substantial evidence test and the arbitrary or capricious test are one and the same.” ADPSO, 745 F.2d at 683; accord CTS Corp. v. EPA, 759 F.3d 52, 59 n.1 (D.C. Cir. 2014). Judicial review is limited to the administrative record, since “[i]t is black-letter administrative law that in an [Administrative Procedure Act] case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision.” CTS Corp., 759 F.3d at 64 (quotations and citations omitted; alteration in original); see 5 U.S.C. § 706 (“[T]he Court shall review the whole record or those parts of it cited by a party ....”); Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (noting, when applying arbitrary and capricious standard under the APA, “ ‘[t]he focal point for judicial review should be the administrative record already in existence (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973))); Overton Park, 401 U.S. at 420, 91 S.Ct. 814 (“review is to be based on the full administrative record that was before the [agency] at the time” of the challenged decision). III. DISCUSSION The plaintiff contends that the NPFC’s First Denial Decision must be “set aside” as “arbitrary and capricious.” Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”) at 1-2, ECF No. 19-1. Specifically," }, { "docid": "1709091", "title": "", "text": "a basis that we find judicial review available in this case. III. The Scope of Judicial Review in This Case Because this case involves “informal agency action,” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985), judicial review of NHTSA’s denial of appellants’ petition under the APA is limited to whether the decision was “arbitrary, capricious, or abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam). Judicial review under § 706(2)(A) determines whether the reasons for the agency’s decision were legally permissible and reasoned ones, and whether there was adequate factual support for the decision. See ADPSO, 745 F.2d at 683-84. The reviewing court may not consider new evidence that was not before the agency when it made its decision. See, e.g., Lorion, 470 U.S. at 744, 105 S.Ct. at 1607. “When the arbitrary and capricious standard is performing that function of assuring factual support, ... whether the administrator was arbitrary must be determined on the basis of what he had before him and not on the basis of ‘some new record made initially in the reviewing court.’ ” ADPSO, 745 F.2d at 683-84 (quoting Camp, 411 U.S. at 142, 93 S.Ct. at 1244). To assure that the necessary factual support for the finding exists, the reviewing court normally must examine the evidence in the existing administrative record, even though it does so with deference to the agency’s judgment. “The APA specifically contemplates judicial review on the basis of the agency record compiled in the course of informal agency action in which a hearing has not occurred.” Lorion, 470 U.S. at 744, 105 S.Ct. at 1607. The Supreme Court has, however, in Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), ruled that in some exceptional circumstances it may be improper for a court to go behind the agency’s facial rationale and look into the factual basis for its decision. Dunlop involved a decision" }, { "docid": "1709089", "title": "", "text": "to find some support for this position in the Chaney opinion, but in fact its view contradicts that opinion. Chaney states that if a statute circumscribes an agency’s enforcement discretion with legal standards, then the presumption against judicial review under § 701(a)(2) is rebutted. Chaney emphatically does not require additional evidence of a congressional intent to provide for judicial review of a nonenforcement decision under the APA where standards exist to govern the petition decisions. Thus, if the “reasonable possibility” standard of § 552.8 had been found in the statute itself, there could be no doubt that judicial review was available under the APA to determine whether NHTSA adhered to that standard. Post-Chaney precedents of this court require the same result where the standards are made by the agency itself. See Padula, supra; California Human Development Corp., supra. Given Service and the multitude of cases following it, we take the position that, in the absence of any congressional intent to preclude review, judicial review is available to hold an agency to procedural and substantive standards contained in its own regulations governing an administrative decision, even when a statute grants the agency “absolute discretion” or something akin to it over that administrative decision. We do not understand Chaney as casting doubt on the validity of this longstanding presumption. The fact that non-enforcement decisions have been “traditionally” committed to agency discretion, Chaney, 470 U.S. at 832,105 S.Ct. at 1656, does not negate the presumption that when an agency by regulation circumscribes the discretion granted to it by Congress, judicial review is available to hold the agency to its rules. This proposition represents the critical difference between the panel and the dissent’s argument in this case. We hold that when a statute grants an agency discretion but does not in text or by reasonable inference from legislative history or structure affirmatively preclude judicial review, review may exist under the Service principle. If, in that review, an agency’s own regulations provide a court with “law to apply,” then review may be had on the basis of compliance with that law. It is on such" }, { "docid": "22445119", "title": "", "text": "its review to the administrative record and prohibited discovery unless the Council provided the court with adequate justification regarding the discovery request. Generally, judicial review of agency action is limited to review of the administrative record. Friends of the Earth v. Hintz, 800 F.2d 822, 828 (9th Cir.1986). In Florida Power & Light Co. v. Lorion, 470 U.S. 729, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985), the Supreme Court emphasized that when reviewing administrative decisions: “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court. Id. at 743-44, 105 S.Ct. at 1607 (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)). This standard is applicable to review of agency action under NEPA. Hintz, 800 F.2d at 829. However, certain circumstances may justify expanding review beyond the record or permitting discovery. See, e.g., Public Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir.1982). The district court may inquire outside the administrative record when necessary to explain the agency’s action. Id. at 793-94. When such a failure to explain agency action effectively frustrates judicial review, the court may “obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). The court’s inquiry outside the record is limited to determining whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision. Hintz, 800 F.2d at 829. The district court may also inquire outside of the administrative record “when it appears the agency has relied on documents or materials not included in the record.” Id. In addition, discovery may be permitted if supplementation of the record is necessary to explain technical terms or" }, { "docid": "22963953", "title": "", "text": "was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” as specified in 5 U.S.C. § 706(2)(A). The scope of review under this section is narrow: “In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). As this Court recently noted in Upjohn Mfg. Co. v. Schweiker, 681 F.2d 480 (6th Cir.1982), de novo review of agency action is the exception rather than the rule, unless required by statute. “ \\D ]e novo review is appropriate only where there are inadequate factfinding procedures in an adjudicatory proceeding, or where judicial proceedings are brought to enforce certain administrative actions.’ ” Id. at 483 (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)). Thus, consideration of evidence outside the administrative record is proper under some circumstances, e.g., “for background information ... or for the limited purposes of ascertaining whether the agency considered all the relevant factors or fully explicated its course of conduct or grounds of decision.” Id. (citations omitted). Moreover, the District Court stated in its Order that it based is decision upon its “review of the administrative record, the memoranda and the arguments by counsel.” Joint Appendix at 263. The Order does not reveal that the District Court used any evidence outside the administrative record in reaching its decision. Thus, we find that the District Court did not conduct a trial de novo and that the Government’s contention that the District Court based its decision on information outside the administrative record is without merit. Norwich Eaton, 808 F.2d at 489. A court should admit affidavits that are not part of the record only for the limited purposes of providing “background information,” considering whether the agency fully explained “its course of conduct” or determining “whether the agency considered all relevant factors.” In Norwich Eaton, we affirmed the district court’s decision because it was not based on outside-the-record" }, { "docid": "1709092", "title": "", "text": "factual support, ... whether the administrator was arbitrary must be determined on the basis of what he had before him and not on the basis of ‘some new record made initially in the reviewing court.’ ” ADPSO, 745 F.2d at 683-84 (quoting Camp, 411 U.S. at 142, 93 S.Ct. at 1244). To assure that the necessary factual support for the finding exists, the reviewing court normally must examine the evidence in the existing administrative record, even though it does so with deference to the agency’s judgment. “The APA specifically contemplates judicial review on the basis of the agency record compiled in the course of informal agency action in which a hearing has not occurred.” Lorion, 470 U.S. at 744, 105 S.Ct. at 1607. The Supreme Court has, however, in Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), ruled that in some exceptional circumstances it may be improper for a court to go behind the agency’s facial rationale and look into the factual basis for its decision. Dunlop involved a decision by the Secretary of Labor not to bring suit to set aside a union election in violation of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). The Court held that while the LMRDA did not entirely prohibit judicial review of the Secretary’s decision, it did ban a judicial “challenge to the factual basis for the Secretary’s decision.” 421 U.S. at 577, 95 S.Ct. at 1862; see id. at 573, 95 S.Ct. at 1860. Thus, the Supreme Court stated, “the court’s review should be confined to examination of the [Secretary’s] ‘reasons’ statement, and the determination whether the statement, without more, evinces that the Secretary’s decision is so irrational as to constitute the decision arbitrary and capricious.” Id. at 572-73, 95 S.Ct. at 1860. Dunlop limited the APA’s “arbitrary or capricious” standard in that case “to determin[ing] whether the Secretary’s decision was reached for an impermissible reason or no reason at all,” id. at 573, 95 S.Ct. at 1861, thereby eliminating the second function of normal APA review, assuring that factual support for the decision existed." }, { "docid": "9632235", "title": "", "text": "courts resolving legal questions.” James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996); see also Lacson v. U.S. Dep’t of Homeland Sec., 726 F.3d 170, 171 (D.C. Cir. 2013) (noting, in APA cases, that “determining the facts is generally the agency’s responsibility, not ours”). Judicial review is limited to the administrative record, since “[i]t is black-letter administrative law that in an [APA] case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision.” CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (internal quotation marks omitted); see 5 U.S.C. § 706 (“[T]he court shall review the whole record or those parts of it cited by a party .... ”); Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (noting, when applying arbitrary and capricious standard under the APA, “‘[t]he focal point for judicial review should be the administrative record already in existence (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973))); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (noting “review is to be based on the full administrative record that was before the [agency] at the time” of the challenged decision). B. STANDARD OF REVIEW UNDER THE APA An agency action, finding or conclusion challenged under the APA must be set aside upon finding that it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). When a challenged agency action is based on the application or operation of a regulation, the agency’s interpretation of its own ambiguous regulation is generally given substantial judicial deference. See Auer v. Robbins, 519 U.S. 452, 463, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); Drake v. F.A.A., 291 F.3d 59, 68 (D.C. Cir. 2002). Given the deference owed to agency’s interpretation of its own ambiguous regulation, a plaintiff challenging this interpretation carries a “heavy burden in advancing [that] claim.” In" }, { "docid": "6460737", "title": "", "text": "relief is whether the PBGC’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” See 5 U.S.C. § 706(2)(A). Judicial review on the instant motion will be limited to an examination of the PBGC Record which documents the agency’s decision to restore the Plans. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 1606-07, 84 L.Ed.2d 643 (1985); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 549, 98 S.Ct. 1197, 1214, 55 L.Ed.2d 460 (1978). Summary judgment is to be granted where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Where, as here, the case involves review of agency action, the material facts are those set forth in the administrative record. Milton v. Harris, 616 F.2d 968, 975 (7th Cir.1980); see Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). In such a case, “[t]he task of the reviewing court is to apply the appropriate APA standard for review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court.” Florida Power & Light v. Lorion, 470 U.S. at 743-44, 105 S.Ct. at 1607. The validity of the agency’s action must “stand or fall” on that record. Camp v. Pitts, 411 U.S. at 143, 93 S.Ct. at 1244; see also Vermont Yankee, 435 U.S. at 549, 98 S.Ct. at 1214. That determination is purely a question of law. Judicial review of agency action under the “arbitrary and capricious” standard mandates a searching inquiry into the facts and their relationship to the articulated basis for an agency’s action. After satisfying itself that the agency has acted within the scope of its authority, the court must engage in a “thorough, probing, in-depth” review to determine whether the agency’s decision-making process was reasoned, took into account all relevant policies and information, and reached a result consistent with congressional intent. Citizens to Preserve Overton Park, Inc. v." }, { "docid": "730613", "title": "", "text": "under 28 U.S.C. § 2241. Parisi, 405 U.S. at 39, 92 S.Ct. 815; Alhassan v. Hagee, 424 F.3d 518, 521-22 (7th Cir.2005). A Aguayo’s first argument concerns the DACORB’s March 2006 supplemental memorandum, which lists several reasons for the Board’s denial of Aguayo’s application. Aguayo contends that the district court should not have consulted this memorandum — and accordingly that the memorandum should be disregarded on appellate review — because it was created after Aguayo filed his amended habeas petition and because the memorandum does not comply with military regulations. We hold that the supplemental memorandum may properly be reviewed in assessing the merits of Aguayo’s habeas petition. Aguayo is correct that judicial review of an administrative decision is generally limited to the existing administrative record. “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)). But this principle of administrative law does not preclude consideration of the supplemental memorandum in this ha-beas corpus proceeding. Under the Administrative Procedure Act (“APA”), agencies generally must state the grounds for their decision to deny a written application. See 5 U.S.C. § 555(e); Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 737 (D.C.Cir.2001); Roelofs v. Sec’y of the Air Force, 628 F.2d 594, 599 (D.C.Cir.1980). This requirement facilitates judicial review, because one of the tasks of the reviewing court is to determine whether an agency decision finds adequate support in the administrative record. Accordingly, when the statement of reasons is inadequate, in an APA case “the usual remedy is a ‘remand to the agency for additional investigation or explanation.’ ” Tourus Records, 259 F.3d at 737 (quoting Florida Power & Light, 470 U.S. at 744, 105 S.Ct. 1598). In this case, the supplemental memorandum provides additional explanation, and we are not inclined to disregard it simply because it was not produced in response to" }, { "docid": "8049540", "title": "", "text": "is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)); see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per cu-riam) (“In applying [the arbitrary and capricious] standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.”). It is not necessary that the agency hold a formal hearing in compiling its record, for “[t]he APA specifically contemplates judicial review on the basis of the agency record compiled in the course of informal agency action in which a hearing has not occurred.” Florida Power, 470 U.S. at 744, 105 S.Ct. at 1607. Both parties agree that the affidavits submitted by IMS were not available to the SBA at the time it made its decision regarding IMS’s participation term. IMS claims, however, that the district court should have considered the affidavits as part of the administrative record because they merely elaborated on details already included in the record. In addition, IMS argues that “even if the affidavits constituted extraneous evidence, they still should have been considered by the Court under various exceptions which permit supplementation of the administrative record.” Appellant’s Brief at 23. We find no legal support for IMS’s assertions. Even if IMS were correct in its claim that information that elaborates on details already in the record could be considered by the court, the affidavits in question could not be considered because they provide significant new information about the circumstances surrounding the 1987 contract that is not available in the administrative record. Moreover, the affidavits do not appear to fall within any of the accepted exceptions to the principle that the court cannot consider information that falls outside the agency record. As" }, { "docid": "20348918", "title": "", "text": "provided by statute; or [¶] (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. 5 U.S.C. § 706 (2006). Based on an apparent misreading of the legislative history, see Gulf Group, Inc. v. United States, 61 Fed. Cl. 338, 350 n. 25 (2004), the Supreme Court had determined, before the 1996 enactment of the ADRA, that the de novo review standard of 5 U.S.C. § 706(2)(F) does not usually apply in review of informal agency decisions — decisions, that is, such as procurement awards. See Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (“Overton Park ”). Instead, courts in those cases are supposed to apply the standard of 5 U.S.C. § 706(2)(A): whether the agency’s acts were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Overton Park, 401 U.S. at 416, 91 S.Ct. 814 (citation omitted); see also Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057 (Fed.Cir.2000) (applying 5 U.S.C. § 706(2)(A)). But see Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 n. 5 (Fed.Cir.2001) (“Domenico Garufi”) (also citing 5 U.S.C. § 706(2)(D) as applicable in bid protests). The “focal point for judicial review” is usually “the administrative record already in existence,” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), even when, as here, the matter under review was not the product of a formal hearing. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed.Cir.2009). As noted above, however, supplementation of the record was found necessary for effective judicial review of the allegations of bias and bad faith. See Tech Systems, Inc. v." }, { "docid": "6460736", "title": "", "text": "The Enforcement Action The central issue in the PBGC’s Enforcement Action is the validity of the agency’s determination to restore the Plans. The PBGC’s complaint states simply that, pursuant to authority granted in section 4047 of ERISA, 29 U.S.C. § 1347, the PBGC restored the Plans and that LTV Steel has refused to comply with the restoration. The complaint seeks an order directing LTV Steel to comply with the Restoration Notice by operating the Plans as ongoing pension plans. This court has jurisdiction under section 4003(e) of ERISA, 29 U.S.C. § 1303(e). Although the PBGC has initiated judicial review by these proceedings, the restoration decision constitutes final agency action; therefore, judicial review of that agency decision is governed by the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Cf. Sierra Club v. United States Army Corps of Eng’rs, 772 F.2d 1043 (2d Cir.1985) (where judicial review not expressly provided under agency’s enabling statute, review is under APA). V. The Scope of Review On the PBGC’s motion for summary judgment, the appropriate standard for relief is whether the PBGC’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” See 5 U.S.C. § 706(2)(A). Judicial review on the instant motion will be limited to an examination of the PBGC Record which documents the agency’s decision to restore the Plans. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 1606-07, 84 L.Ed.2d 643 (1985); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 549, 98 S.Ct. 1197, 1214, 55 L.Ed.2d 460 (1978). Summary judgment is to be granted where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Where, as here, the case involves review of agency action, the material facts are those set forth in the administrative record. Milton v. Harris, 616 F.2d 968, 975 (7th Cir.1980); see Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). In such a case, “[t]he task" }, { "docid": "1709090", "title": "", "text": "contained in its own regulations governing an administrative decision, even when a statute grants the agency “absolute discretion” or something akin to it over that administrative decision. We do not understand Chaney as casting doubt on the validity of this longstanding presumption. The fact that non-enforcement decisions have been “traditionally” committed to agency discretion, Chaney, 470 U.S. at 832,105 S.Ct. at 1656, does not negate the presumption that when an agency by regulation circumscribes the discretion granted to it by Congress, judicial review is available to hold the agency to its rules. This proposition represents the critical difference between the panel and the dissent’s argument in this case. We hold that when a statute grants an agency discretion but does not in text or by reasonable inference from legislative history or structure affirmatively preclude judicial review, review may exist under the Service principle. If, in that review, an agency’s own regulations provide a court with “law to apply,” then review may be had on the basis of compliance with that law. It is on such a basis that we find judicial review available in this case. III. The Scope of Judicial Review in This Case Because this case involves “informal agency action,” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985), judicial review of NHTSA’s denial of appellants’ petition under the APA is limited to whether the decision was “arbitrary, capricious, or abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam). Judicial review under § 706(2)(A) determines whether the reasons for the agency’s decision were legally permissible and reasoned ones, and whether there was adequate factual support for the decision. See ADPSO, 745 F.2d at 683-84. The reviewing court may not consider new evidence that was not before the agency when it made its decision. See, e.g., Lorion, 470 U.S. at 744, 105 S.Ct. at 1607. “When the arbitrary and capricious standard is performing that function of assuring" }, { "docid": "7122373", "title": "", "text": "Transportation Policy (“Space Policy”). Third, plaintiff has moved to supplement the administrative record, seeking to add 151 pages of documents that it received in response to a request for documents, submitted to the Office of Science and Technology Policy (“OSTP”), pursuant to the Freedom of Information Act (“FOIA”). For the reasons detailed below, (1) defendant’s motion to strike is granted-in-part, and denied-in-part, and (2) defendant’s motion to correct the administrative record is granted. Partly because the court finds the parties’ arguments on admissibility of the FOIA material to be closely intertwined with the merits of plaintiffs protest, the court withholds its decision on plaintiffs motion to supplement the record. I. The Scope of the Evidentiary Record in a Bid Protest In a bid protest, the court reviews the challenged agency decision to determine if it was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (cited in 28 U.S.C. § 1491(b)(4)). As a general rule, the “focal point for judicial review [of the challenged agency decision] should be the administrative record already in existence, not some new record made initially with the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). The court’s task is “to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court.” Fla. Power & Light v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). The purpose of limiting review to the record actually before the agency is to guard against converting the highly deferential APA review, under the “arbitrary and capricious” standard, into effectively de novo review of the merits of the agency’s decision. Axiom Res. Mgmt. v. United States, 564 F.3d 1374, 1380 (Fed.Cir.2009) (citing Murakami v. United States, 46 Fed.Cl. 731, 735 (2000)). Therefore, supplementation of the administrative record is permissible only where omission of the extra-record evidence would “frustrate effective judicial review.” Id. at 1381 (quoting Pitts, 411 U.S. at 142-43, 93 S.Ct. 1241). The conceptual elegance" }, { "docid": "13699824", "title": "", "text": "Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1459-60 (9th Cir.1984). Specifically, judicial review of administrative decisions involving the ESA is governed by Section 706 of the APA. Pyramid Lake Paiute Tribe v. U.S. Dep’t of Navy, 898 F.2d 1410, 1414 (9th Cir.1990). “Under section 706, the reviewing court must satisfy itself that agency decisions are not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The relevant inquiry is whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Id. (internal quotation marks omitted) (citations omitted). “In reviewing the actions of a federal agency it is not the court’s role to substitute its judgment for the agency’s, particularly in areas which require application of agency expertise.” Defenders of Wildlife v. Administrator, Envtl. Protection Agency, 688 F.Supp. 1334, 1352 (D.Minn.1988), aff'd in part and rev’d in part on other grounds, 882 F.2d 1294 (8th Cir.1989). “Reasonable people could disagree as to the proper level of activism required by an agency under the ESA. The court will not substitute its judgment for the agency’s in deciding as a general matter that the totality of defendant’s actions taken to protect threatened and endangered species were insufficient.” Id. The APA also determines this Court’s scope of review. “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)). “The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court.” Id. 470 U.S. at 743-44, 105 S.Ct. 1598 (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). The focal point for this Court’s review has been the administrative record pertaining to the" } ]

[ { "docid": "8563692", "title": "", "text": "well as the rest of the record, we believe that serious error was committed in the course of the sentencing procedures which mandates vacatur of the sentence and resentencing before a different district judge. Criminal sentences are not generally reviewable in this Circuit. However, this Court does have the authority to review sentences under certain limited circumstances. Where there is a possibility that sentence was imposed on the basis of false information or false assumptions concerning the defendant, an appeal will lie to this Court and the sentence will be vacated. “Misinformation or misunderstanding that is materially untrue regarding a pri- or criminal record, or material false assumptions as to any facts relevant to sentencing, renders the entire sentencing procedure invalid as a violation of due process.” Townsend v. Burke, 334 U.S. 736 at 740-1, 68 S.Ct. 1252, 92 L.Ed. 1690. United States v. Malcolm, 432 F.2d 809, 816 (2d Cir. 1970). Accord, United States v. Herndon, 525 F.2d 208 (2d Cir. 1975); United States v. Needles, 472 F.2d 652, 657 (2d Cir. 1973). Rule 32(a)(1) of the Federal Rules of Criminal Procedure (Rule) provides in pertinent part that: “Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.” We have held that a defendant must be permitted to state his version of the facts to the court; where the possibility of reliance on misinformation is shown, this right must be extended to permit that presentation by the defendant which will enable the sentencing judge to grasp the relevant facts correctly. United States v. Needles, 472 F.2d 652, 658 (2d Cir. 1973); see also, United States v. Rollerson, 491 F.2d 1209, 1213 (5th Cir. 1974); United States v. Powell, 487 F.2d 325, 329 (4th Cir. 1974). In appropriate circumstances, this may mean that a defendant will be permitted to submit affidavits or documents, supply oral statements, or even participate in an evidentiary hearing; alternatively," } ]

[ { "docid": "18056836", "title": "", "text": "himself made certain that the court understood the chronology of the convictions. Thus, it is clear that the judge was not laboring under misinformation. He had an accurate picture of the chronology. As an additional argument, Lasky asserts that the sentence imposed was so harsh as to constitute an abuse of discretion. This contention also is without merit. The sentence was less than one-fourth the maximum for the offense, and one-half the sentence that was recommended by the probation department. As for Lasky’s claims of rehabilitation, the judge did emphasize how impressed he was by the people who had similarly vouched for him in 1967. In these circumstances the court’s refusal to credit the defendant’s assertions of rehabilitation cannot be deemed an abuse of discretion. Lasky’s last argument is that the court denied him due process by applying a mechanical, rather than an individualized, approach to sentencing. A mechanical approach conflicts with sentencing guidelines announced by the Supreme Court. See Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.2d 1337 (1949). It is evident that the judge here carefully weighed many factors in arriving at an appropriate sentence. These included Lasky’s personal background and prior criminal record, the amount of cocaine involved, Lasky’s role in the venture, his false testimony at trial, letters and testimony in support of Lasky, and his claims of rehabilitation. The district court cannot be said to have employed a mechanical approach and its imposition of two concurrent seven-year sentences did not constitute an abuse of discretion. AFFIRMED. . Lasky argues that the doctrine of nonreviewability of sentences should be abandoned. In fact, however, although courts generally will not review the length of a sentence imposed within the statutory limits, Dorszynski v. United States, 418 U.S. 424, 431, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974); United States v. Kearney, 560 F.2d 1358, 1369 (9th Cir.) cert. denied 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460 (1977), absolute nonreviewability of sentences has never been the rule in this court." }, { "docid": "23617973", "title": "", "text": "arose from a single concerted plan to defraud, constituted an abuse of discretion.... “It is well settled that each use of the mails is a separate offense under the mail fraud statute, notwithstanding the fact that the defendant may have been engaged in one fraudulent scheme.” 631 F.2d at 106-07, quoting United States v. Moss, 614 F.2d 171, 174 (8th Cir.1980). Likewise, Mackay did not state a rule, but simply remanded for resentencing where consecutive sentences struck the court as unconscionable in light of the defendant’s criminal history and degree of involvement. 491 F.2d at 624-25. Simply put, there is no support for the defendant’s argument. See United States v. Bramlet, 820 F.2d 851, 857 (7th Cir.1987) (“The Appellant has cited no authority, and we are aware of none, to support his claim [that imposition of consecutive sentences on multiple mail fraud counts is an abuse of discretion”].). Moreover, in pre-guidelines cases, such as this one, a district court’s sentence is unreviewable so long as it is within statutory limits and is not predicated on misinformation or impermissible considerations. Id. at 857, citing Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958) and United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591-92, 30 L.Ed.2d 592 (1972). Coonce’s sentence was not based on misinformation or impermissible considerations, and we therefore reject his claim. 3. Bias Coonce’s last claim has two wrinkles. First, that his sentence should be reduced because it is excessive, and excessive sentences disserve society. This claim fails because we have already rejected its premise; by finding the sentence was not disproportionate under Solem we also found that it was not excessive. Accordingly, it could not injure society. Second, the defendant alleges that Judge Baker had a preconceived bias towards him, which he unleashed in imposing sentence. This claim rests on the court’s discussion of insurance policies. Judge Baker stated that “Anybody who knows anything about investments knows that [life insurance] is a bad investment.” Sentencing Tr. at 25. Coonce also perceives bias in the court’s refusing to allow" }, { "docid": "202583", "title": "", "text": "deterrent value. Again, Your Honor, the government is not going to make a specific recommendation as a part of the plea agreement. Our agreement indicates, for Mr. Brummett, we would simply recommend that some period of incarceration be imposed. Brummett claims that the government breached the agreement by suggesting “a lengthy period of incarceration is appropriate” rather than simply recommending “some period of incarceration.” Although plea agreements are to be construed strictly, we conclude that the agreement was not breached in this case. The word “lengthy” clouds “an otherwise clear picture,” United States v. Bullock, 725 F.2d 118, 119 (D.C.Cir.1984), but no breach has occurred; Brummett clearly received “the benefit of his bargain.” Bercheny, 633 F.2d at 476. We do, however, “admonish the government to avoid occasions for questioning of its meticulous adherence to the terms of a plea bargain.” Bullock, 725 F.2d at 119. Citing among other factors his good record at school and work, his lack of criminal record, and no history of substance abuse, Brummett claims that his sentence is disproportionately excessive and violates the eighth amendment prohibition against cruel and unusual punishment. It is well established that “a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.” United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972) (citing Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958)); United States v. Barbara, 683 F.2d 164, 166 (6th Cir.1982). The Supreme Court has made an exception to this principle when a sentence has been founded “at least in part upon misinformation of constitutional magnitude.” Tucker, 404 U.S. at 447, 92 S.Ct. at 592. In this case, Brummett’s sentence was less than half of his statutory exposure of twenty years and $20,000. The court, furthermore, relied upon no “misinformation of constitutional magnitude” and the sentence is clearly not disproportionately excessive so as to violate the eighth amendment prohibition against cruel and unusual punishment. Finally, Brummett claims that the district court abused its discretion and violated his due process" }, { "docid": "8915946", "title": "", "text": "been a hearing in the present situation. And if in the course of a hearing Moore’s claims are borne out, he should be resentenced. Accordingly, the matter will be remanded to the district court for further proceedings in conformity with this opinion. . See United States v. Tucker, 404 U.S. 443, 446-447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); United States v. Fessler, 453 F.2d 953, 954 (3d Cir. 1972). See also United States v. Lee, 532 F.2d 911, 916 (3d Cir. 1976); Government of Virgin Islands v. Richardson, 498 F.2d 892, 894 (3d Cir. 1974). . Dorszynski v. United States, 418 U.S. 424, 443, 94 S.Ct. 3042, 3053, 41 L.Ed.2d 855 (1974), quoting United States v. Hartford, 489 F.2d 652, 654 (5th Cir. 1974) (emphasis in original). . See, e. g., Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). . Rule 32(c)(2), Federal Rules of Criminal Procedure, states: The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. . Rule 32(c)(3)(A), Federal Rules of Criminal Procedure, provides: Before imposing sentence the court shall upon request permit the defendant, or his counsel if he is so represented, to read the report of the presentence investigation exclusive of any recommendation as to sentence, but not to the extent that in the opinion of the court the report contains diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons; and the court shall afford the defendant or his counsel an opportunity to comment thereon and, at the discretion of the court," }, { "docid": "23661213", "title": "", "text": "reasons that follow, we hold that the decision to assess a six month penalty for Marshall’s disciplinary infractions was unsupportable, but that the district court went too far in setting aside the entire penalty rather than just the portion relating to the first infraction. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court delineated the constraints imposed by due process on a judge’s discretion to resentence a criminal defendant after a successful appeal by that defendant has forced the state to retry (and reconvict) him. In spite of the tremendous reluctance of the Court to interfere with the virtually unreviewable discretion belonging to a sentencing judge, see Dorszynski v. United States, 418 U.S. 424, 431, 440-41 & n. 14, 94 S.Ct. 3042, 3047, 3051-52 & n. 14, 41 L.Ed. 855 (1974); Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958), the Court nevertheless held that due process forbade the imposition of a tougher sentence than the defendant had received after his first trial, whenever the increased penalty was in retaliation for the successful appeal. Pearce, 395 U.S. at 723-25, 89 S.Ct. at 2079-80. The Court held that the mere “threat inherent in the existence of such a punitive policy” would serve to chill appeals by other prisoners, id. at 724, 89 S.Ct. at 2080 (citation omitted), and therefore that “due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Id. at 725, 89 S.Ct. at 2080 (footnotes omitted). To that end, recognizing the difficulty of proving the existence of a retaliatory motivation in any individual case, see id. at 725 n. 20, 89 S.Ct. at 2080 n. 20, the Court held that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing" }, { "docid": "18887200", "title": "", "text": "plenary in the absence of irregularities.” United States v. Kerley, 838 F.2d 932, 940 (7th Cir.1988). “[A] sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review, unless predicated upon misinformation or constitutionally impermissible considerations.” United States v. Bramlet, 820 F.2d 851, 857 (7th Cir.), cert. denied, - U.S.-, 108 S.Ct. 175, 98 L.Ed.2d 129 (1987) (citing Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958); United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972)). See also United States v. Ford, 840 F.2d 460, 466 (7th Cir.1988); United States v. Hoffman, 806 F.2d 703, 713 (7th Cir.1986), cert. denied, 481 U.S. 1005, 107 S.Ct. 1627, 95 L.Ed.2d 201 (1987). “([A court of appeals] ‘may not change or reduce a sentence imposed within the applicable statutory limits on the ground that the sentence was too severe unless the trial court relied on improper or unreliable information in exercising its discretion or failed to exercise any discretion at all in imposing the sentence.’ ” quoting United States v. Fleming, 671 F.2d 1002, 1003 (7th Cir.1982) (footnote omitted)). Donald Fournier was sentenced to four years imprisonment. The maximum statutory penalty for an individual who violates 26 U.S.C. § 7201 is a $100,000 fine and/or five years imprisonment. Fournier does not claim that the district judge based his sentencing decision on improper information and/or constitutionally impermissible considerations, or that he failed to exercise discretion. He contends only that the sentence was unreasonably harsh in light of his status as a first-time offender with no prior criminal record. Appellant fails to state a ground warranting reduction of the sentence imposed on him by the district court. IV The district court did not commit reversible error in instructing the jury or imposing sentence on appellant. The judgment of the district court is affirmed. . The Seventh Circuit Federal Criminal Jury Instruction for the 26 U.S.C. § 7201 offense states as below. To sustain the charge of attempting to evade or defeat a tax, the government" }, { "docid": "23545799", "title": "", "text": "not deprive the court of jurisdiction. If denials of allocution and improper colloquies in taking guilty pleas do not cause miscarriages of justice, it is hard to see how deviation from the Sentencing Guidelines could do so. Until November 1, 1987, when the Guidelines took effect, federal district judges had all but total control over sentencing. They could slap the defendant on the wrist or impose the statutory maximum sentence, with no obligation to conform to any particular theory of punishment or even to explain why they acted as they did. See United States v. Dorszynski, 418 U.S. 424, 443, 94 S.Ct. 3042, 3052, 41 L.Ed.2d 855 (1974); United States v. Tucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 591-52, 30 L.Ed.2d 592 (1972); Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284-85, 2 L.Ed.2d 1405 (1958). Cf. United States v. Pinto, 875 F.2d 143 (7th Cir.1989); United States v. Masters, 978 F.2d 281, 285-86 (7th Cir.1992). If unbounded discretion is- proper, then errors in the administration of a system that curtails discretion cannot be “inconsistent with the rudiments of fair procedure”. Moreover, it is far from clear that the Guidelines are designed to protect the interests of defendants (as Rules 11 and 32(a) unquestionably are designed to do). The Sentencing Reform Act instructs the judiciary to produce more consistency among sentences, for the benefit of society rather than of particular defendants, many of whose sentences rise dramatically as a result. Congress provided for . enforcement of the Guidelines by an adversarial clash, and in this sense they create “rights.” Still, the Sentencing Guidelines are not exactly a Bill of Rights for criminals! One full and fair opportunity to make . arguments under the Guidelines — at sentencing and on direct appeal — is enough. Over and over, the Supreme Court has emphasized the difference between direct appeal and collateral attack. See, in addition to Timmreck and Hill, cases such as Brecht v. Abrahamson, — U.S.-, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Parke v. Raley, - U.S. --, 113 S.Ct. 517, 121 L.Ed.2d 391 (1993); Keeney" }, { "docid": "9938668", "title": "", "text": "Tracey, 675 F.2d 433, 441 (1st Cir.1982) (defendant’s lack of cooperation with the government is a legitimate factor in sentencing). More troubling is Santamaria’s contention that he was denied due process by the sentencing court’s conclusion that: “I think from what I know of your case that you are beyond rehabilitation, that punishment for punishment’s sake is deserving, that punishment for the sake of deterrence is deserved____” Santamaría argues that a conclusion that he — a twenty-two-year-old with no prior criminal record — was beyond rehabilitation lacked any foundation in the record. He therefore argues that his sentence was based in part upon a false premise, and so violates due process. A sentence within statutory limits is generally not subject to substantive review. See Dorszynski v. United States, 418 U.S. 424, 443, 94 S.Ct. 3042, 3052-53, 41 L.Ed.2d 855 (1974) (well-established doctrine bars review of the exercise of sentencing discretion); United States v. Talavera, 668 F.2d 625, 632 (1st Cir.), cert. denied, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982). However, a case will be remanded for re-sentencing if a sentence was based on erroneous information or erroneous assumptions of constitutional magnitude. See United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591-92, 30 L.Ed.2d 592 (1972) (case would be remanded for reconsideration of sentence where sentence was founded at least in part upon misinformation of constitutional magnitude); United States v. Kimball, 741 F.2d 471, 475 (1st Cir.1984) (sentence within statutory limits and not based on misinformation of constitutional magnitude is within the discretion of the sentencing judge); United States v. Tracey, 675 F.2d 433, 441 (1st Cir.1982). The sentencing court’s conclusion as to Santamaria’s being beyond rehabilitation did not amount to an erroneous assumption of constitutional magnitude. First, in considering Santamaria’s prospects for rehabilitation, the court acted within the proper bounds of discretion. See United States v. Grayson, 438 U.S. 41, 47-48, 98 S.Ct. 2610, 2614, 57 L.Ed.2d 582 (1978) (to an unspecified degree the sentencing judge is obligated to make his decision on the basis, among others, of predictions regarding the defendant’s potential or" }, { "docid": "6195780", "title": "", "text": "Criminal Procedure when reducing a sentence under certain circumstances within 120 days after the sentence is imposed. FED.R.CRIM.P. 35(b). See United States v. DeMier, 520 F.Supp. 1160 (W.D.Mo.1981), aff’d, 671 F.2d 1200 (8th Cir.1982). (District judge determined that “material false assumptions” about the parole guidelines warranted his reduction of the defendants’ sentences). This is within the discretion of the district judge. “The function of Rule 35 is to allow the district court to decide if, on further reflection, the sentence seems unduly harsh.” United States v. Ames, 743 F.2d 46, 48 (1st Cir.1984), cert. denied, 469 U.S. 1165, 105 S.Ct. 927, 83 L.Ed.2d 938 (1985). In the case at bar, however, Judge Baker reviewed his earlier findings and chose to let them stand. “The Supreme Court has held that convicted defendants have a due process right to be sentenced on the basis of accurate information.” United States ex rel. Welch v. Lane, 738 F.2d 863, 864 (7th Cir.1984), citing United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 592, 30 L.Ed.2d 592 (1972), and Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). In Tucker, the defendant had been sentenced in part on the basis of a prior conviction which was later found to be unconstitutional because the defendant had not been represented by counsel. The Supreme Court affirmed the court of appeals decision vacating the sentence: For we deal here, not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of constitutional magnitude. As in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, ‘this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.’ Id. at 741, 68 S.Ct. at 1255. Tucker, 404 U.S. at 447, 92 S.Ct. at 591-92. Under Tucker, “a sentence must be set aside where the defendant can show that false information was part of the basis for the sentence. The two elements of that showing are, first, that information before the sentencing" }, { "docid": "23014723", "title": "", "text": "counts and permit him to serve his sentence on probation, F.R.Cr.P. 35. The application was supported by an impressive collection of letters from officials of Union Theological Seminary where McGee had studied, another distinguished educator, business men with whom McGee had worked as executive director of Business Executives Move for Vietnam Peace (BEM), a United States Senator, and a Representative. All attested to McGee’s deep personal sincerity, his high character and principles, and his determination to work in an orderly and constructive manner to end this country’s involvement in Vietnam. The judge entertained the motion but denied it on July 13, 1971, in a brief ruling set forth in the margin. McGee had begun serving his sentence on July 6. On this appeal only the denial of the motion to reduce sentence is pressed. McGee contends that this unexplained refusal was an abuse of discretion. We have only recently reaffirmed that “[a] sentencing judge has very broad discretion in imposing any sentence within the statutory limits . . ” United States v. Sweig, 454 F.2d 181, 183-184 (2 Cir. 1972). See also Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). We have no intention of deviating from this general principle. Appellate courts, though, have gone so far as to scrutinize the information considered by the trial judge in the sentencing process. In Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948), the Court deemed unconstitutional a sentencing proceeding in which a “prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.” See also United States v. Malcolm, 432 F.2d 809, 815-816 (2 Cir. 1970). Similarly, the Court has only recently affirmed an appellate order vacating a sentence “founded at least in part upon misinformation of constitutional magnitude” — specifically, two prior convictions unconstitutional in light of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). United States v. Tucker, supra, 404 U.S. at 447," }, { "docid": "23014724", "title": "", "text": "181, 183-184 (2 Cir. 1972). See also Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). We have no intention of deviating from this general principle. Appellate courts, though, have gone so far as to scrutinize the information considered by the trial judge in the sentencing process. In Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948), the Court deemed unconstitutional a sentencing proceeding in which a “prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.” See also United States v. Malcolm, 432 F.2d 809, 815-816 (2 Cir. 1970). Similarly, the Court has only recently affirmed an appellate order vacating a sentence “founded at least in part upon misinformation of constitutional magnitude” — specifically, two prior convictions unconstitutional in light of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). United States v. Tucker, supra, 404 U.S. at 447, 92 S.Ct. at 589. Implicit in these decisions is the proposition that a trial judge, in exercising his sentencing discretion, may not rely significantly upon false evidence of prior convictions or upon evidence of prior convictions which were illegally obtained. We believe that this case presents a problem not without some analogy. We deal here with a conviction on four counts which were prosecuted in one trial and upon which identical concurrent sentences were simultaneously imposed. However, the conviction under one of those counts has now been determined to have been unlawful. The trial judge’s original sentencing determination with respect to counts 2 through 4 could have been influenced by appellant’s conviction under count 1 — just as evidence of a pri- or conviction might influence a sentencing judge on a subsequent one. If such were in fact the case, appellant’s initial sentences under counts 2 through 4 would require reconsideration. In Burke and Tucker, it was plain from the record that “the sentencing judge gave specific consideration to the [defendant’s] previous convictions before imposing" }, { "docid": "23128752", "title": "", "text": "defense counsel had had no time to review or possibly even to absorb seventeen separate incidents hitherto unfamiliar to him, the request for an adjournment of the sentence was denied. The Assistant United States Attorney then made a strong plea that “Mr. Rosner be dealt with in the harshest possible terms.” In Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), the Supreme Court held that an excessive severity of sentence within the statutory maximum is not reviewable, but that where the sentencing court seriously misreads the defendant’s record and proceeds to sentence on false assumptions, the failure to supply counsel to the defendant makes the error one of constitutional magnitude. Here the defendant did have able and conscientious counsel, but unless counsel was given adequate opportunity to correct any misinformation in the prosecutor’s memorandum, we doubt that his spontaneous comment before sentence was adequate to afford the defendant his due. See United States v. Picard, 464 F.2d 215, 220 (1 Cir. 1972); United States v. Hone, 456 F.2d 495, 496 (6 Cir. 1972). We do not treat a violation of Fed.R.Crim.P. 32(a), such as is here alleged, as necessarily one of due process. See Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) and United States v. Fischer, 381 F.2d 509 (2 Cir. 1967), cert. denied, 390 U.S. 973, 88 S.Ct. 1064, 19 L.Ed.2d 1185 (1968) [cases of collateral attack], United States v. Malcolm, 432 F.2d 809, 818 (2 Cir. 1970). But>we think that Rule 32(a) must be fairly read to give the defendant not only the right “to make a statement on his own behalf” but, in this context, also “to present any information in mitigation of punishment.” Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961). The manner ■ of rebutting hearsay assertions in a presentence probation report must generally rest in the informed discretion of the sentencing judge. The tender of such proof does not mandate an evidentiary hearing. See Williams v. New York, 337 U.S. 241, 246-257," }, { "docid": "3146660", "title": "", "text": "matters not when or how the counterfeit notes are made. Each is a violation of the statute. It is also urged that the court’s judgment and sentence is void because the process employed by the sentencing judge was an abuse of discretion affecting constitutional rights of LeMon. It is argued that the court failed to give consideration to pertinent facts and disregarded all presentence information when sentence was pronounced. We begin with the general rule that in the federal judicial system the trial judges have broad discretion in pronouncing sentences in criminal cases, and sentences within the statutory limits are not subject to review. United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); United States v. MacClain, 501 F.2d 1006 (10th Cir. 1974); Cooper v. United States, 403 F.2d 71 (10th Cir. 1968). See also Roberts v. United States, - U.S. -, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980), and 18 U.S.C. § 3577. The courts have held, however, that sentences are subject to appellate review if (1) they are based upon misinformation of constitutional magnitude. Roberts v. United States, supra; United States v. Tucker, supra; Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); and (2) when no discretion is exercised in pronouncing sentence. Dorszynski v. United States, supra; Woosley v. United States, 478 F.2d 139 (8th Cir. 1973). LeMon and his brother Gary were found guilty as charged on January 9, 1976. A third defendant had previously entered a plea of guilty. The sentencing proceedings were on March 9, 1976, where LeMon appeared with his counsel. Prior to the sentencing the court was furnished a report by the probation officer. An oral report was made in open court by the probation officer and a representative of the United States District Attorney’s office. At the hearing a full opportunity for allocution as required by Rule 32 of the Federal Rules of Criminal" }, { "docid": "202584", "title": "", "text": "and violates the eighth amendment prohibition against cruel and unusual punishment. It is well established that “a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.” United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972) (citing Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958)); United States v. Barbara, 683 F.2d 164, 166 (6th Cir.1982). The Supreme Court has made an exception to this principle when a sentence has been founded “at least in part upon misinformation of constitutional magnitude.” Tucker, 404 U.S. at 447, 92 S.Ct. at 592. In this case, Brummett’s sentence was less than half of his statutory exposure of twenty years and $20,000. The court, furthermore, relied upon no “misinformation of constitutional magnitude” and the sentence is clearly not disproportionately excessive so as to violate the eighth amendment prohibition against cruel and unusual punishment. Finally, Brummett claims that the district court abused its discretion and violated his due process rights by denying without a hearing his Rule 35 motion. Brummett argues that he needed a hearing to rebut the “material and erroneous assumptions” of the sentencing judge. He further claims that the government’s failure to oppose his motion indicated the government’s tacit approval of his argument to reduce his sentence. It is well settled that Rule 35 motions are “addressed to the sound discretion of the district court and there is no requirement of a hearing.” United States v. Jones, 490 F.2d 207, 208 (6th Cir.), cert. denied, 416 U.S. 989, 94 S.Ct. 2397, 40 L.Ed.2d 768 (1974); see also Gov’t of the Virgin Islands v. Gereau, 603 F.2d 438, 443 n. 3 (3d Cir.1979). Under these circumstances where the judge relied on no misinformation in sentencing Brummett, the court did not abuse its discretion in refusing to hold a hearing on his Rule 35 motion. The failure of the government to oppose the Rule 35 motion, moreover, is simply one factor to be weighed by the sentencing judge and certainly is not dispositive" }, { "docid": "12163916", "title": "", "text": "sentence that is within the statutory limits and is not based on misinformation of a constitutional magnitude is within the discretion of the sentencing judge. United States v. Tucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). There is no limitation on the type of information the judge may consider in imposing sentence. 18 U.S.C. § 3577. Appellant’s challenge to the use of Green’s grand jury testimony as uncorroborated hearsay is without merit. Although he claimed at the sentencing hearing that the testimony was unreliable, he did not deny the accuracy of any statements made by Green. The government was not required to corroborate‘ the hearsay in the absence of a specific denial by appellant of the truth of the statements. See United States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980); United States v. Harris, 558 F.2d 366, 375 (7th Cir. 1977); United States v. Cardi, 519 F.2d 309, 314 (7th Cir. 1975). Moreover, particularly since he had had the opportunity to observe Green as a witness at trial, “the sentencing judge has broad discretion to decide for himself not only the relevance but also the reliability of the sentencing information.” United States v. Morgan, 595 F.2d 1134, 1138 (9th Cir. 1979). As for the reference to appellant’s lack of cooperation with the government regarding the illegal activity of others, the Supreme Court has recently held this to be a legitimate factor in sentencing. Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980). See United States v. Miller, 589 F.2d 1117, 1139 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979). Appellant was sentenced to eighteen months on each tax evasion count and one year on each false return count, all to be served concurrently, and a $15,000 fine. As this was well within the statutory limitations, we will not set it aside. See Dorszynski v. United States, 418 U.S. 424, 431, 94 S.Ct. 3042, 3046, 41 L.Ed.2d 855 (1974); United" }, { "docid": "6195781", "title": "", "text": "and Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). In Tucker, the defendant had been sentenced in part on the basis of a prior conviction which was later found to be unconstitutional because the defendant had not been represented by counsel. The Supreme Court affirmed the court of appeals decision vacating the sentence: For we deal here, not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of constitutional magnitude. As in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, ‘this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.’ Id. at 741, 68 S.Ct. at 1255. Tucker, 404 U.S. at 447, 92 S.Ct. at 591-92. Under Tucker, “a sentence must be set aside where the defendant can show that false information was part of the basis for the sentence. The two elements of that showing are, first, that information before the sentencing court was inaccurate, and second, that the sentencing court relied on the misinformation in passing sentence.” Lane, 738 F.2d at 865. The caselaw suggests that the facts at bar do not fall within the ambit of “misinformation” sufficient to trigger Tucker. In Tucker, the Supreme Court considered a case where a sentencing judge gave specific consideration to a prisoner’s previous convictions before imposing sentence upon him. It later became clear that two of those convictions were wholly unconstitutional under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and were then challenged and set aside. 404 U.S. at 447, 92 S.Ct. at 591. In contrast, the instant case involves a disagreement as to defendants’ approximate release dates and the district judge’s consideration of these dates in handing down the sentences. This is not “misinformation of a constitutional magnitude” as described in Tucker. In United States v. Dean, 752 F.2d 535 (11th Cir.1985), cert. denied, 107 S.Ct. 97, 479 U.S. 824, 93 L.Ed.2d 48 (1986), the Eleventh Circuit discussed a case similar" }, { "docid": "23661212", "title": "", "text": "had ordered the Commission to state its reasons for denying Marshall parole. Marshall contends that such action by the Commission is both arbitrary and retaliatory. The Commission is correct (as is the dissent) that there are no statutory or regulatory standards by which to measure and review this Commission decision (beyond ensuring there was “some evidence” in the record to support the guilty finding on the charged infractions, see Superintendent v. Hill, 472 U.S. at 454, 105 S.Ct. at 2773, a fact that Marshall does not challenge). However that does not end the inquiry, for we also must review the decision to be certain it comports with due process. See Local 2855 v. United States, 602 F.2d 574, 580 (3d Cir.1979) (“Even when a court ascertains that a matter has been committed to agency discretion by law, it may entertain charges that the agency lacked jurisdiction, that the agency’s decision was occasioned by impermissible influences, such as fraud or bribery, or that the decision violates a constitutional, statutory or regulatory command.”) (footnote omitted). For the reasons that follow, we hold that the decision to assess a six month penalty for Marshall’s disciplinary infractions was unsupportable, but that the district court went too far in setting aside the entire penalty rather than just the portion relating to the first infraction. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court delineated the constraints imposed by due process on a judge’s discretion to resentence a criminal defendant after a successful appeal by that defendant has forced the state to retry (and reconvict) him. In spite of the tremendous reluctance of the Court to interfere with the virtually unreviewable discretion belonging to a sentencing judge, see Dorszynski v. United States, 418 U.S. 424, 431, 440-41 & n. 14, 94 S.Ct. 3042, 3047, 3051-52 & n. 14, 41 L.Ed. 855 (1974); Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958), the Court nevertheless held that due process forbade the imposition of a tougher sentence than the defendant had received" }, { "docid": "18887199", "title": "", "text": "§ 7201 instruction closely tracks the Seventh Circuit Federal Criminal Jury Instruction for that offense. It is beyond dispute that the instruction given by the district court as to the necessary elements of the § 7201 offense correctly states the three elements of the crime. Certainly, the phrase “willfully did some act” is a fair and adequate synonym for the term “affirmative act.” In his brief, appellant did not discuss the model Seventh Circuit instruction. The district court’s refusal to adopt the “affirmative act” instruction proposed by Fournier was not error. That instruction was redundant with the model Seventh Circuit instruction in regard to the third element of the crime proscribed by § 7201 and it was not necessary to ensure a fair determination of appellant’s guilt or innocence of that offense. Ill Appellant also takes issue with the length of the sentence imposed on him by the district court as a result of his conviction of the § 7201 offense. It is well-established that the district court’s “discretion to impose a lawful sentence is plenary in the absence of irregularities.” United States v. Kerley, 838 F.2d 932, 940 (7th Cir.1988). “[A] sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review, unless predicated upon misinformation or constitutionally impermissible considerations.” United States v. Bramlet, 820 F.2d 851, 857 (7th Cir.), cert. denied, - U.S.-, 108 S.Ct. 175, 98 L.Ed.2d 129 (1987) (citing Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958); United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972)). See also United States v. Ford, 840 F.2d 460, 466 (7th Cir.1988); United States v. Hoffman, 806 F.2d 703, 713 (7th Cir.1986), cert. denied, 481 U.S. 1005, 107 S.Ct. 1627, 95 L.Ed.2d 201 (1987). “([A court of appeals] ‘may not change or reduce a sentence imposed within the applicable statutory limits on the ground that the sentence was too severe unless the trial court relied on improper or unreliable information in exercising its discretion or failed to exercise any" }, { "docid": "23392175", "title": "", "text": "United States v. Stewart, 820 F.2d 1107, 1108 (9th Cir.), cert. denied, 484 U.S. 867, 108 S.Ct. 192, 98 L.Ed.2d 144 (1987). This discretion enables the sentencing judge to consider a wide, largely unlimited variety of information to insure that the punishment fits not only the crime, but the individual defendant as well. United States v. Safirstein, 827 F.2d 1380, 1384-85 (9th Cir.1987) (citing, inter alia, 18 U.S.C. § 3577 ). While a federal sentence within statutory limits ordinarily is not subject to review, the constitutional guarantee of due process, which continues to operate through sentencing, Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977), circumscribes the district court’s discretion. See United States v. Gomez, 797 F.2d 417, 419 (7th Cir.1986) (sentencing defendant more harshly because of his nationality “obviously would be unconstitutional”); see also United States v. Tucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 591-92, 30 L.Ed.2d 592 (1972); Safirstein, 827 F.2d at 1384-85; United States v. Salas, 824 F.2d 751, 752 (9th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987). Thus, the district judge may not consider improper, inaccurate, or mistaken information, nor may he make unfounded assumptions or groundless inferences in imposing sentence. Safirstein, 827 F.2d at 1385 (abuse of discretion to impose maximum sentence based upon groundless inference of involvement in drug trafficking); see also Dorszynski, 418 U.S. at 431 n. 7, 94 S.Ct. at 3047 n. 7 (sentence may not be based upon improper or inaccurate information); Tucker, 404 U.S. at 447, 92 S.Ct. at 591 (review available if district judge relied upon “misinformation of constitutional magnitude”); United States v. Weston, 448 F.2d 626, 634 (9th Cir.1971) (unconstitutional to rely upon information that is materially untrue or of little value because lacking in indicia of reliability). B. Whether Borrero’s right to due process was violated hinges upon the district court’s actual basis for imposing a stricter sentence. There are two possibilities: Borrero received an enhanced sentence either (1) because of his national origin or (2) because he obtained the drugs from a source" }, { "docid": "23545798", "title": "", "text": "which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” 368 U.S. at 428, 82 S.Ct. at 471, quoting from Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939). Then United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), applied the same approach to a violation of Fed.R.Crim.P. 11, which establishes procedures for the taking of guilty pleas. Only a “complete miscarriage of justice” or a “proceeding ‘inconsistent with the rudimentary demands of fair procedure’ ” could support post-judgment relief, and deviations from Rule 11 do not fall into these categories, the Court held. 441 U.S. at 784, 99 S.Ct. at 2087. Indeed, as we observed in Reed v. Clark, 984 F-.2d 209, 210-11 (7th Cir.1993), the Supreme Court has never approved the use of collateral relief for any non-constitutional error that does not deprive the court of jurisdiction. If denials of allocution and improper colloquies in taking guilty pleas do not cause miscarriages of justice, it is hard to see how deviation from the Sentencing Guidelines could do so. Until November 1, 1987, when the Guidelines took effect, federal district judges had all but total control over sentencing. They could slap the defendant on the wrist or impose the statutory maximum sentence, with no obligation to conform to any particular theory of punishment or even to explain why they acted as they did. See United States v. Dorszynski, 418 U.S. 424, 443, 94 S.Ct. 3042, 3052, 41 L.Ed.2d 855 (1974); United States v. Tucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 591-52, 30 L.Ed.2d 592 (1972); Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284-85, 2 L.Ed.2d 1405 (1958). Cf. United States v. Pinto, 875 F.2d 143 (7th Cir.1989); United States v. Masters, 978 F.2d 281, 285-86 (7th Cir.1992). If unbounded discretion is- proper, then errors in the administration of a system that curtails" } ]

[ { "docid": "22661701", "title": "", "text": "in the Eighth Amendment context from that of the criminal law. Here, a subjective approach isolates those who inflict punishment; there, it isolates those against whom punishment should be inflicted. But the result is the same: to act recklessly in either setting a person must “consciously disregar[d]” a substantial risk of serious harm. Model Penal Code ■§ 2.02(2)(c). At oral argument, the Deputy Solicitor General advised against frank adoption of a criminal-law mens rea requirement, contending that it could encourage triers of fact to find Eighth Amendment liability only if they concluded that prison officials acted like criminals. See Tr. of Oral Arg. 39-40. We think this concern is misdirected. Bivens actions against federal prison officials (and their 42 U. S. C. § 1983 counterparts against state officials) are civil in character, and a court should no more allude to the criminal law when enforcing the Cruel and Unusual Punishments Clause than when applying the Free Speech and Press Clauses, where we have also adopted a subjective approach to recklessness. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657,688 (1989) (holding that the standard for “reckless disregard” for the truth in a defamation action by a public figure “is a subjective one,” requiring that “the defendant in fact entertained serioús doubts as to the truth of his publication,” or that “the defendant actually had a high degree of awareness of... probable falsity”) (internal quotation marks and citations omitted). That said, subjective recklessness as used in the criminal law is a familiar and workable stand ard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases, and we adopt it as the test for “deliberate indifference” under the Eighth Amendment. 2 Our decision that Eighth Amendment liability requires consciousness of a risk is thus based on the Constitution and our cases, not merely on a parsing of the phrase “deliberate indifference.” And we do not reject petitioner’s arguments for a thoroughly objective approach to deliberate indifference without recognizing that on the crucial point (whether a prison official must know of a risk, or whether it" } ]

[ { "docid": "8496", "title": "", "text": "the trial violated the defendant’s constitutional rights.” Id. We therefore hold that a § 1983 plaintiff must show that police officers acted with deliberate indifference to or reckless disregard for an accused’s rights or for the truth in withholding evidence from prosecutors. This standard is consistent with the standard imposed in the substantive due process context, in which government action may violate due process if it “shocks the conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The level of culpability required to meet the conscience-shocking standard depends on the context. See id. at 850, 118 S.Ct. 1708 (stating that “[d]eliberate indifference that shocks in one environment may not be so patently egregious in another”). In determining whether deliberate indifference is sufficient to shock the conscience, or whether the more demanding standard of purpose to harm is required, “the ‘critical consideration [is] whether the circumstances are such that actual deliberation is practical.’” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir.2008) (“Osborn”) (quoting Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 372 (9th Cir.1998)) (alteration in original). Thus, in Lewis, the Court held that, in the context of a high speed car chase, an officer could not be liable for a due process violation without a purpose to harm. Lewis, 523 U.S. at 836, 118 S.Ct. 1708; see also Osborn, 546 F.3d at 1140 (where the decedent’s evasive actions required the officers to react quickly, the officers could be held liable only if they acted with a purpose to harm). The instant case, however, is more akin to cases that apply a reckless indifference standard to due process claims because the decision whether to disclose or withhold exculpatory evidence is a situation in which “actual deliberation is practical.” Osborn, 546 F.3d at 1137. For example, in Amrine v. Brooks, 522 F.3d 823 (8th Cir.2008), the Eighth Circuit discussed a “substantive due process cause of action for reckless investigation.” Id. at 833. The court stated that the liberty interest in súch a cause of action is the interest in obtaining fair" }, { "docid": "5658208", "title": "", "text": "clothing. After receiving initial medical care from nurses at the Hampshire Jail, Burrell was taken to Cooley Dickinson Hospital for treatment. We are told that Burrell suffered a broken nose and orbital bone, and a concussion. II. Analysis Burrell brings suit against Godek, Thomas, Seaver, Garvey and Martinez in both their individual and official capacities for deliberate indifference to a risk to his health and safety. We evaluate his claims against the defendants in their individual capacities only. A damages suit against an official in an official capacity is tantamount to a suit against the entity of which the official is an agent (the jail), and there is no claim here that the entity followed a policy or custom of deliberate indifference. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Burrell also brings suit against Garvey and Hampshire County based on a failure to supervise, and on the Hampshire Jail’s policy of not classifying and segregating inmates according to whether they were accused of violent or nonviolent offenses. We discuss individual and municipal liability separately. A. Deliberate Indifference Pretrial detainees are protected under the Fourteenth Amendment Due Process Clause rather than the Eighth Amendment; however, the standard to be applied is the same as that used in Eighth Amendment cases. See Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (the Due Process Clause protections are at least as great as those under the Eighth Amendment); 1 M.B. Mushlin, Rights of Prisoners § 2.02 (2d ed. Supp.2001) (same). An alleged Eighth Amendment violation is analyzed according to the framework laid out in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), as further explicated in Giroux v. Somerset County, 178 F.3d 28 (1st Cir.1999), and Calderón-Ortiz v. LaBoy-Alvarado, 300 F.3d 60 (1st Cir.2002). Prison officials have a responsibility not to be deliberately indifferent to the risk to prisoners of violence at the hands of other prisoners. Farmer, 511 U.S. at 833," }, { "docid": "8791057", "title": "", "text": "F.3d 28, 31 (1st Cir.1999) (citing Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). The protection afforded a prisoner against other prisoners is, like medical care, a “condition” of confinement. Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Prison officials have a duty under the Eighth Amendment “to protect prisoners from violence at the hands of other prisoners.” Giroux, 178 F.3d at 32 (internal citations omitted). Prison officials must take “reasonable measures to guarantee inmates’ safety from attacks by other inmates.” Calderon-Ortiz v. LaBoy-Alvarado, 300 F.3d 60, 64 (1st Cir.2002). Nonetheless, “[n]ot every injury suffered by a prisoner at the hands of another results in constitutional liability on the part of prison officials.” Burrell v. Hampshire County, 307 F.3d 1, 7 (1st Cir.2002). Farmer and its progeny set out two tests for sustaining a prison-conditions claim in violation of the Eighth Amendment. Burrell, 307 F.3d at 8. First, the alleged deprivation must be objectively serious. Id. The prisoner must demonstrate that the conditions of his incarceration pose a “substantial risk of serious harm.” Id. Second, the prison official must have had “a sufficiently culpable state of mind, namely one of ‘deliberate indifference’” to the prisoner’s health or safety. Id. The requisite state of mind is “more blameworthy than negligence.” Id. The standard requires “an actual, subjective appreciation of the risk” to inmates that is analogous to the standard for determining criminal recklessness. Id. It is axiomatic that prison officials cannot be deliberately indifferent if they are unaware of the risk. Id. Including Brown and Shabazz, three prisoners raised concerns about the possibility of retribution from other inmates. Dunton’s grievances support Brown and Shabazz’s claims that prison officials were aware that the inmate maintenance workers were wary of potential retaliation from their fellow prisoners for being seen installing security measures. Although the Prison Officials may have known that the inmate maintenance crew was afraid of retribution from other prisoners, however, there is no evidence on the record indicating that any of the crew members who performed the installations were" }, { "docid": "259246", "title": "", "text": "a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” 523 U.S. at 847 n. 8, 118 S.Ct. 1708. Lewis took pains to explain that the deliberate indifference and professional judgment standards remain good law, serving as more precise articulations of the broader “shocks-the-conscience” rule. See id. “Rules of due process are not ... subject to mechanical application in unfamiliar territory” and, thus, “[deliberate indifference that shocks in one environment may not be so patently egregious in another.” Id. at 850, 118 S.Ct. 1708. In other words, deliberately indifferent behavior does not always and necessarily shock the conscience, but it may shock the conscience under certain circumstances. See J.R. v. Gloria, 593 F.3d 73, 80 (1st Cir.2010). Youngberg also “can be cate gorized on much the same terms.” Lewis, 523 U.S. at 852 n. 12, 118 S.Ct. 1708. Thus, to draw out this comparison, a substantial departure from accepted professional judgment may shock the conscience under some circumstances but not others. Plaintiffs, then, are incorrect in suggesting that Lewis does not apply to this particular substantive due process claim. As the First Circuit unequivocally stated, “the shocks-the-conscience test ... governs all substantive due process claims based on executive, as opposed to legislative, action.” Martinez v. Cui, 608 F.3d 54 (1st Cir.2010) (emphasis in original). In sum, to establish a substantive due process claim, Plaintiffs must show that Defendants’ conduct represented a substantial departure from accepted professional judgment, which deprived them of conditions of reasonable care and safety, and that such conduct shocks the conscience. Here, Plaintiffs have alleged that Defendants abdicated their duty to use professional judgment by placing Plaintiffs in foster homes that presented known risks of harm, failing to monitor these improper placements, shuttling them among foster families without any hope of finding a permanent home, preventing visitation with parents and siblings, and failing to provide various forms of essential treatment. (See Dkt. No. 1, Compl. ¶¶ 164-214.) Plaintiffs further allege that these failures" }, { "docid": "10586240", "title": "", "text": "standing to bring an Eighth Amendment claim, his claim fails as a matter of law because Ms. Schulte’s actions never rose to the level of a constitutional violation and she did not act with the required culpability. B. Mr. Revel’s Fourteenth Amendment Claim Next, Mr. Revels claims Ms. Schulte violated substantive due process by unreasonably denying him the fundamental right to bodily integrity. To prevail on such a claim, the plaintiff must generally show the defendant acted' with deliberate indifference to a constitutional right in a manner that shocks the conscience. Putnam, 332 F.3d at 548. Where the defendant did not have time for actual deliberation before committing the wrongful act, however, the plaintiff must show the defendant acted with a degree of fault evincing malice or sadistic behavior. County of Sacramento v. Lewis, 523 U.S. at 833, 852-53, 118 S.Ct. 1708 (citing Whitley, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). Mr. Revels argues the court in Glaspy v. Malicoat held the opportunity to urinate, under certain conditions, is a fundamental right subject to due process protection as “a matter of bodily integrity.” 134 F.Supp.2d 890, 895 (W.D.Mich.2001). Assuming for the sake or argument that we agree with Glaspy, Mr. Revel’s claim still fails as a matter of law because, as we have already determined, Ms. Schulte did not act with even deliberate indifference toward his welfare. II Dr. David Hunter was the Fulton psychiatrist who supervised Mr. Revels’s medical program. Mr. Revels claims Dr. Hunter violated his First Amendment right to free speech in retaliation for the grievances Mr. Revels filed against Fulton staff members. Mr. Revels asserts Dr. Hunter blocked reclassification opportunities and denied him step-level increases, conditional releases, and placement in less-secure facilities. To establish a First Amendment retaliation claim under 42 U.S.C. § 1983, the plaintiff must show (1) he engaged in a protected activity, (2) the government official took adverse action against him that would chill a person of ordinary firmness from continuing in the activity, and (3) the adverse action was motivated at least in part by the exercise of" }, { "docid": "23131900", "title": "", "text": "reasoning: (1) because the deliberate indifference necessary for a violation of due process is the same as that for Eighth Amendment violations, Betts’s failure to show deliberate indifference in the Eighth Amendment context doomed his substantive due process claim; and (2) Betts failed to establish a state-created danger because the alleged behavior did not shock the conscience. Betts, 2009 WL 2913846, at *6-7. To support his substantive due process claims, Betts points to the same evidence he cited in support of his Eighth Amendment claim. Defendants argue that these claims are barred by the “more-specific-provision rule” because Betts’s complaints concerning the conditions of his confinement are properly cognizable under the Eighth Amendment. In the alternative, Defendants contend that the District Court properly found evidence of deliberate indifference to be lacking. Noting its “reluctante] to expand the concept of substantive due process,” the Supreme Court has established the “more-specific-provision rule.” County of Sacramento v. Lewis, 523 U.S. 833, 843-44, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Under this rule, “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (clarifying prior holing in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The Supreme Court explained the rationale behind the rule for Eighth Amendment claims in Whitley v. Albers, where a prisoner shot in the leg during a prison riot filed both Eighth Amendment and Fourteenth Amendment substantive due process claims against prison officials: [T]he Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified. It would indeed be surprising if, in the context of forceful prison security measures, “conduct that shocks the conscience” or" }, { "docid": "22288131", "title": "", "text": "Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). Just as the deliberate indifference of prison officials to the medical needs of prisoners may support Eighth Amendment liability, such indifference may also “rise to the conscience-shocking level” required for a substantive due process violation. Lewis, 523 U.S. at 849-50, 118 S.Ct. 1708. A prison official’s deliberately indifferent conduct will generally “shock the conscience” so as long as the prison official had time to deliberate before acting or failing to act in a deliberately indifferent manner. See Tennison v. City and Cnty. of San Francisco, 570 F.3d 1078, 1089 (9th Cir.2009); Porter v. Osborn, 546 F.3d 1131, 1138 (9th Cir.2008). A. Removal of Floor Officers Plaintiffs contend that by removing the floor officers from Building 8 for several hours during the middle of the day, Defendants Sisto, Neuhring, Wong, Martinez, and Orrick (“Supervisory Defendants”) deprived St. Jovite of the availability of “medical or mental health treatment” and “meaningful supervision protecting him from harm,” both of which were sufficiently serious deprivations to form the basis of an Eighth Amendment violation. The district court did not evaluate the objective “sufficiently serious” prong, see above at 18, instead ending its analysis after determining that Defendants’ actions in removing the floor officers did not satisfy the subjective “deliberate indifference” prong. The district court held that “[e]ven assuming that each of [the Supervisory] Defendants was responsible for the removal decision, the record is devoid of evidence from which it can reasonably be inferred that any Defendant knew the removal would subject St. Jovite to a substantial health or safety risk,” and further, that “there [is no] evidence in the record from which it can be reasonably inferred that the removal created an ‘obvious’ risk of harm to St. Jovite.” (citing Thomas, 611 F.3d at 1150). We disagree with respect to Defendants Sisto and Neuhring, but we affirm with respect to Defendants Wong, Martinez and Orrick. 1. Sufficiently Serious Prong In a failure to protect claim, an inmate satisfies the “sufficiently serious deprivation” requirement by “showing] that he is incarcerated under conditions" }, { "docid": "2344285", "title": "", "text": "subjective. See Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 2481-82, 125 L.Ed.2d 22 (1993) (noting that, on remand, the plaintiff would have “to prove both the subjective and objective elements necessary to’prove an Eighth Amendment violation”). First, the alleged deprivation must be objectively serious. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1976-77, 128 L.Ed.2d 811 (1994). For a claim based on failure to prevent harm, it must be shown that the inmate was incarcerated in conditions posing a “substantial risk of serious harm”. Id. The second, subjective component of the analysis requires that the inmate caretaker must have had a sufficiently culpable state of mind at the time of the alleged violation. In prison-condition cases like this one, the required state of mind is deliberate indifference to inmate health or safety. See id. In defining “deliberate indifference” in this context, the Supreme Court has determined that “a prison official may be held hable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and.disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. Mere negligence does not rise to the level of deliberate indifference. See id. at 835. The Supreme Court has equated deliberate indifference in this context with recklessness. See id. It is important to note that connotations of the term “deliberate indifference” vary depending on whether the Eighth Amendment claim is asserted against an individual or a municipality. See id. at 840-41. The query with respect to individuals such as defendants Day and Bradford is whether they were “deliberately indifferent” to a known “substantial risk” that a detainee would take his own life. See id. at 837. By contrast, for municipalities such as Clarke County, “deliberate indifference” must be measured under an objective approach that does not account for actual disregard of known risks. See id. at 841. The use of an objective standard is necessary here because it is not possible for a municipality, an artificial entity, to have subjective intentions. See" }, { "docid": "23123814", "title": "", "text": "negligence does not rise to the level of a substantive due process violation. Id. (“At a minimum, the standard requires a showing beyond mere negligence.”). The intentional infliction of injury, on the other hand, generally renders state actors liable for violations of a plaintiffs Fourteenth Amendment right to substantive due process. Id. (explaining that “it is generally agreed that Fourteenth Amendment liability will attach to ‘conduct intended to injure in some way unjustifiable by any governmental interest’ ”) (emphasis in original) (quoting Lewis, 523 U.S. at 849, 118 S.Ct. 1708). Whether conduct that lies between simple negligence and intentional harm shocks the conscience of the court “depends upon the facts and circumstances of the individual case.” Ewolski, 287 F.3d at 510. Custodial settings, for example, present a situation where state actors will be held liable for violating a plaintiffs substantive due process rights if they ex hibit deliberate indifference to the risk of injury from a private party. Stemler, 126 F.3d at 870 (“[W]here the plaintiff suffered ipjury as a result of being placed in the state’s custody, it has consistently and uncontroversially been the rule that a constitutional claim arises where the injury occurred as a result of the state’s deliberate indifference to the risk of such an injury.”). The key factor in custodial environments and other situations where deliberate indifference renders state actors liable for substantive due process violations is the ability of the officials to consider their actions in. an unhurried, deliberative manner. Lewis, 523 U.S. at 851, 118 S.Ct. 1708 (“As the very term ‘deliberate indifference’ implies, the standard is sensibly employed only when actual deliberation is practical, and in the custodial situation of a prison, forethought about an inmate’s welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare.”) (internal citation and footnote omitted); Ewolski, 287 F.3d at 511 (concluding that the deliberate-indifference standard applied to the plaintiffs’ substantive due process claim because the defendants not only had sufficient time to deliberate about their actions, but also engaged in deliberative actions). Applying these" }, { "docid": "11390073", "title": "", "text": "turn on his overhead lights is “a product of actual deliberation,” that “triggerfs] a deliberate indifference analysis of [the officer’s] mental state.” Graves, 450 F.3d at 1222. However, “a culpable mental state, alone, is insufficient to establish a violation of substantive due process.” Id. Thus, in Graves, we held that “even assuming [the officer] was deliberately indifferent to [the plaintiff’s] Fourteenth Amendment rights ... his actions [were] not conscience shocking” and therefore did not establish a substantive due process violation. Id. And while our court has rejected the notion “that a prolonged opportunity to deliberate should automatically be judged conscience-shocking behavior,” we have also held that “[w]hile length of deliberation may be a factor in a conscience-shocking analysis, it cannot replace the over-arching need for deference to local policy-making bodies.” Moore v. Guthrie, 438 F.3d 1036, 1041 n. 1 (10th Cir.2006). Thus, we have stated that “ ‘liability for deliberate indifference ... rests upon the luxury ... of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations.’ ” Perez, 432 F.3d at 1166 (quoting Lewis, 523 U.S. at 853, 118 S.Ct. 1708). The next question, then, is what it is that the officer is deliberately indifferent toward or about. As the Eleventh Circuit has stated, “a substantive due process violation would, at the very least, require a showing of deliberate indifference to an extremely great risk of serious injury to someone in Plaintiffs’ position.” Waddell v. Hendry County Sheriffs Office, 329 F.3d 1300, 1306 (11th Cir.2003). The Sixth Circuit has observed that “where there is the opportunity for ‘reflection and unhurried judgments,’ we have stated that government officials could be liable upon a showing that they were subjectively aware of a substantial risk of serious harm to the plaintiff.” Hunt v. Sycamore Comm. Sch. Dist., 542 F.3d 529, 540 (6th Cir.2008); see also Pena v. DePrisco, 432 F.3d 98, 114 (2d Cir.2005) (“Whether termed ‘deliberate indifference’ or ‘recklessness,’ this mental state is sufficient to establish liability in such cases ‘because it requires proof that the defendant focused upon the" }, { "docid": "6976215", "title": "", "text": "the conscience. See Schaefer v. Las Cruces Pub. Sch. Dist., 716 F.Supp.2d 1052, 1074-1075 (D.N.M.2010) (Browning, J.)(finding that school’s failure to act after three complaints about conduct that could “arguably be characterized as sexual assault,” and then pointing out the plaintiff as the victim at a school assembly regarding the conduct, “may be worthy of remedy under tort law, and perhaps worthy of punishment in the form of punitive damages,” but did not shock the conscience.) Because “the due process rights of a pretrial detainee are at least as great as the Eighth Amendment protections available to a convicted prisoner,” see County of Sacramento v. Lewis, 523 U.S. 833, 849-50, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)(quoting City of Revere v. Massachusetts Gen. Hospital, 463 U.S. at 244, 103 S.Ct. 2979), a finding of deliberate indifference in a claim for failure to provide for a detainee’s serious medical needs shocks the conscience as a matter of law: Whether the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence, is a matter for closer calls. To be sure, we have expressly recognized the possibility that some official acts in this range may be actionable under the Fourteenth Amendment, and our cases have compelled recognition that such conduct is egregious enough to state a substantive due process claim in at least one instance. We held in City of Revere v. Massachusetts Gen. Hospital, 463 U.S. 239 ... (1983), that the due process rights of a pretrial detainee are at least as great as the Eighth Amendment protections available to a convicted prisoner. Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, ... it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial. Cnty. of Sacramento v. Lewis, 523 U.S. at 849-50, 118 S.Ct." }, { "docid": "3447912", "title": "", "text": "in which actual deliberation was practical. Therefore, its conduct shocks the conscience only if it acted with “deliberate indifference.” Id. at 851-52, 118 S.Ct. 1708. To define deliberate indifference for Eighth Amendment purposes, the Supreme Court has adopted the subjective standard of criminal recklessness, i.e., “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In Lewis, the Court equated deliberate indifference for substantive due process with Eighth Amendment deliberate indifference. 523 U.S. at 849-50, 118 S.Ct. 1708. Thus, to sustain the district court’s denial of JAML, we must conclude there was sufficient evidence to find Little Rock acted intentionally or wrongfully in disregarding a known danger. Avalos, 382 F.3d at 800. Conversely, if we conclude Little Rock’s conduct was merely negligent or even grossly negligent, the denial of JAML must be reversed. See Farmer, 511 U.S. at 838, 114 S.Ct. 1970 (“[A]n official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned ....”) (emphasis added). The evidence showed Witherell was aware the personnel files contained sensitive information and the request for the flies was related to a criminal proceeding in which Hart and Dyer were likely involved. Additionally, Witherell testified she understood why police officers would not want their personal information released to criminal defendants — as she herself would not want her personal information released to a criminal defendant. Based on this testimony, Hart and Dyer argue she knew there was a substantial risk Bullock might obtain and use the information to harm them or their families and chose to ignore the risk. We disagree. While it is clear Witherell appreciated the sensitive nature of the information, there is no evidence proving she ever considered whether it would be disseminated to Bullock or another criminal defendant. Hart and Dyer make much of Witherell’s testi mony indicating she would" }, { "docid": "3447911", "title": "", "text": "of ... abuse of power so brutal and offensive that [they do] not comport with traditional ideas of fair play and decency.” Avalos, 382 F.3d at 800 (quoting S.S., 225 F.3d at 964) (internal quotations omitted); see also Moran v. Clarke, 296 F.3d 638, 647 (8th Cir.2002) (Substantive due process violations involve conduct “so severe ... so disproportionate to the need presented, and ... so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.”) (quoting In re Scott County Master Docket, 672 F.Supp. 1152, 1166 (D.Minn.1987)). “Proof of intent to harm is usually required, but in some eases, proof of deliberate indifference, an intermediate level of culpability, will satisfy this substantive due process threshold.” Terrell v. Larson, 396 F.3d 975, 978 (8th Cir.2005) (citing Lewis, 523 U.S. at 848-49, 118 S.Ct. 1708) (holding the deliberate indifference standard is applied when actual deliberation is practical)). In this case, Little Rock acted under circumstances in which actual deliberation was practical. Therefore, its conduct shocks the conscience only if it acted with “deliberate indifference.” Id. at 851-52, 118 S.Ct. 1708. To define deliberate indifference for Eighth Amendment purposes, the Supreme Court has adopted the subjective standard of criminal recklessness, i.e., “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In Lewis, the Court equated deliberate indifference for substantive due process with Eighth Amendment deliberate indifference. 523 U.S. at 849-50, 118 S.Ct. 1708. Thus, to sustain the district court’s denial of JAML, we must conclude there was sufficient evidence to find Little Rock acted intentionally or wrongfully in disregarding a known danger. Avalos, 382 F.3d at 800. Conversely, if we conclude Little Rock’s conduct was merely negligent or even grossly negligent, the denial of JAML must be reversed. See Farmer, 511 U.S. at 838, 114 S.Ct." }, { "docid": "22397139", "title": "", "text": "was neither “unhurried” nor \"largely uncomplicated by the pulls of competing obligations.” Id. at 853, 118 S.Ct. 1708. Defendants faced time pressure to contain the spread of infection. They faced competing obligations with respect to financial and space resources and with respect to the need to warn and educate inmates and staff without creating undue alarm. Accordingly, we think the appropriate standard may be higher than deliberate indifference. We note that at least one of our sister courts of appeals has indicated a higher standard of culpability may be required where a defendant’s decisionmaking relates to workplace conditions. See White v. Lemacks, 183 F.3d 1253, 1258 (11th Cir.1999) (\"Although Lewis leaves open the possibility that deliberate indifference on the part of government officials or employees will 'shock the conscience' in some circumstances, ... it is clear after Collins that such indifference in the context of routine decisions about employee or workplace safety cannot carry a plaintiff's case across that high threshold.”) (citation omitted). . But in the context of municipal liability, the Court has defined deliberate indifference as \"a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of County Comm’rs v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). . We have expressed approval of a subjective standard of deliberate indifference in other § 1983 substantive due process cases as well. See, e.g., Schieber v. City of Philadelphia, 320 F.3d 409, 421 (3d Cir.2003); Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir.2003). But we have not yet definitively answered the question of whether the appropriate standard in a non-Eighth Amendment substantive due process case is subjective or objective. An objective standard would move the concept of deliberate indifference, which lies \"somewhere between the poles of negligence at one end and purpose or knowledge at the other,” Farmer v. Brennan, 511 U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), closer to the pole of negligence. Mindful that “liability for negligently inflicted harm is categorically beneath the threshold of constitutional" }, { "docid": "10586239", "title": "", "text": "was deprived of the opportunity to use the toilet for only a few seconds before he lost control of his bladder. Ms. Schulte’s conduct simply does not rise to the level of an Eighth Amendment violation. Second, Ms. Schulte did not act with the requisite state of mind to meet the subjective component of an Eighth Amendment claim. We fail to see how delaying Mr. Revels’s visit to the toilet for a few seconds reflects a deliberate indifference to his health or safety. See Givens v. Jones, 900 F.2d 1229, 1233 (8th Cir.1990) (holding one-month delay in providing medical treatment after complaints of leg pain did not reflect deliberate indifference). Moreover, Mr. Revels lost bladder control just after he uttered the request to Ms. Schulte who was occupied with the other inmate. Under these circumstances, no reasonable person would find she had the opportunity to discern, much less disregard, Mr. Revels’s crisis. Thus, Mr. Revels failed to raise a triable issue as to either element of his Eighth Amendment claim. Even if Mr. Revels had standing to bring an Eighth Amendment claim, his claim fails as a matter of law because Ms. Schulte’s actions never rose to the level of a constitutional violation and she did not act with the required culpability. B. Mr. Revel’s Fourteenth Amendment Claim Next, Mr. Revels claims Ms. Schulte violated substantive due process by unreasonably denying him the fundamental right to bodily integrity. To prevail on such a claim, the plaintiff must generally show the defendant acted' with deliberate indifference to a constitutional right in a manner that shocks the conscience. Putnam, 332 F.3d at 548. Where the defendant did not have time for actual deliberation before committing the wrongful act, however, the plaintiff must show the defendant acted with a degree of fault evincing malice or sadistic behavior. County of Sacramento v. Lewis, 523 U.S. at 833, 852-53, 118 S.Ct. 1708 (citing Whitley, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). Mr. Revels argues the court in Glaspy v. Malicoat held the opportunity to urinate, under certain conditions, is a fundamental" }, { "docid": "23566823", "title": "", "text": "Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983); Bell, 441 U.S. at 535 n. 16, 99 S.Ct. 1861. As the Supreme Court made clear recently in County of Sacramento v. Lewis, — U.S.-, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), a detainee therefore is protected from the “deliberate indifference” of prison officials: Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, see Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial. County of Sacramento, 118 S.Ct. at 1718. The Supreme Court distinguished among three levels of fault — negligence, deliberate indifference and conduct that shocks the conscience. It stated that “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process,” id,., that “deliberate indifference” is the standard to employ “when actual deliberation is practical” (such as in the custodial situation of a prison), id. at 1719, and that “a much higher standard of fault than deliberate indifference has to be shown for officer liability in a prison riot” or in a high-speed chase, id. at 1720. That higher standard is the “shocks-the-conscience” test. Id. We have applied the deliberate indifference standard to a pretrial detainee’s § 1983 claim. See Antonelli v. Sheahan, 81 F.3d 1422, 1428 (7th Cir.1996). When the § 1983 claim is based on a jail suicide, the degree of protection accorded a detainee is the same that an inmate receives when raising an inadequate medical attention claim under the Eighth Amendment — deliberate indifference. See Mathis v. Fairman, 120 F.3d 88, 91 (7th Cir.1997) (“A prison official violates the Eighth Amendment (which applies to persons who have been convicted) and the due process clause of the Fourteenth Amendment (which applies to pre-trial detainees ...) when he is deliberately indifferent to a substantial risk of serious harm to" }, { "docid": "7611771", "title": "", "text": "occurred here. He followed none of the statutorily required procedures for protective custody, and instead of taking Qian to a hospital or other facility where his mental and physical condition could be monitored, Bullis delivered Qian to the “drunk tank” of the local jail. At no point over the course of Bullis’ investigation and the subsequent detention was Qian treated as anything other than a criminal suspect. Again, given the present state of the record, the Long Beach defendants’ protective custody argument is not enough to warrant summary judgment in their favor. Ill We next consider Qian’s claim against the LaPorte County defendants for their alleged denial of adequate medical attention in violation of the Due Process Clause of the Fourteenth Amendment. A state official violates the due process rights of a pretrial detainee when she acts with deliberate indifference toward the detainee’s serious medical needs. Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.1995); Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir.1991); Salazar v. City of Chicago, 940 F.2d 233, 239 (7th Cir.1991). This court has observed that “deliberate indifference” is simply a synonym for intentional or reckless conduct, and that “reckless” describes conduct so dangerous that the deliberate nature of the defendant’s actions can be inferred. Brownell, 950 F.2d at 1290. In this sense, the due process standard is analogous to that utilized in the Eighth Amendment context, where prison officials may be found liable for disregarding a substantial risk to an inmate’s health or safety. See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In both cases, the relevant inquiry is whether the official actually knew about the plaintiffs condition, not whether a reasonable official should have known. Compare Brownell, 950 F.2d at 1291 (applying a subjective standard in the Fourteenth Amendment context) with Farmer, 511 U.S. at 837, 114 S.Ct. 1970 (applying a subjective standard in the Eighth Amendment context). The district court granted summary judgment in favor of the LaPorte County defendants based on its determination that the record at most could only support the inference that the LaPorte" }, { "docid": "22288130", "title": "", "text": "of Orange, 351 F.3d 410, 418 (9th Cir.2003) (quoting Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir.2001)). This causal connection can include: “1) [the supervisors’] own culpable action or inaction in the training, supervision, or control of subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is made; or 3) [their] conduct that showed a reckless or callous indifference to the rights of others.” Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir.2000). Parents and children may assert Fourteenth Amendment substantive due process claims if they are deprived of their liberty interest in the companionship and society of their child or parent through official conduct. Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir.2010) (citing Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir.1991)); see also Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir.1998). “[O]nly official conduct that ‘shocks the conscience’ is cognizable as a due process violation.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir.2008) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). Just as the deliberate indifference of prison officials to the medical needs of prisoners may support Eighth Amendment liability, such indifference may also “rise to the conscience-shocking level” required for a substantive due process violation. Lewis, 523 U.S. at 849-50, 118 S.Ct. 1708. A prison official’s deliberately indifferent conduct will generally “shock the conscience” so as long as the prison official had time to deliberate before acting or failing to act in a deliberately indifferent manner. See Tennison v. City and Cnty. of San Francisco, 570 F.3d 1078, 1089 (9th Cir.2009); Porter v. Osborn, 546 F.3d 1131, 1138 (9th Cir.2008). A. Removal of Floor Officers Plaintiffs contend that by removing the floor officers from Building 8 for several hours during the middle of the day, Defendants Sisto, Neuhring, Wong, Martinez, and Orrick (“Supervisory Defendants”) deprived St. Jovite of the availability of “medical or mental health treatment” and “meaningful supervision protecting him from harm,” both of which were sufficiently serious deprivations to" }, { "docid": "22397140", "title": "", "text": "deliberate indifference as \"a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of County Comm’rs v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). . We have expressed approval of a subjective standard of deliberate indifference in other § 1983 substantive due process cases as well. See, e.g., Schieber v. City of Philadelphia, 320 F.3d 409, 421 (3d Cir.2003); Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir.2003). But we have not yet definitively answered the question of whether the appropriate standard in a non-Eighth Amendment substantive due process case is subjective or objective. An objective standard would move the concept of deliberate indifference, which lies \"somewhere between the poles of negligence at one end and purpose or knowledge at the other,” Farmer v. Brennan, 511 U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), closer to the pole of negligence. Mindful that “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process,” Lewis, 523 U.S. at 849, 118 S.Ct. 1708, and that the Supreme Court has expressed its \"reluctan[ce] to expand the concept of substantive due process,” Collins, 503 U.S. at 125, 112 S.Ct. 1061, we hesitate to do so. But we recognize the Farmer standard was applied in an Eighth Amendment context. In the context of municipal liability, the Court has held the appropriate standard is objective. See, e.g., Brown, 520 U.S. at 410-12, 117 S.Ct. 1382; City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The Court has also observed that actual knowledge can be inferred if a risk is obvious, see Hope v. Pelzer, 536 U.S. 730, 738, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (\"We may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious.”) (citing Farmer, 511 U.S. at 842-43, 114 S.Ct. 1970), which sounds much like a modified objective standard. We recognize strong arguments weighing in favor of both standards. But because" }, { "docid": "23131899", "title": "", "text": "(internal quotations omitted). Betts has failed to make the requisite showing of deliberate indifference. As previously explained, it is not obvious that the risks associated with playing tackle football without equipment are unreasonable. Although Betts correctly notes that Defendants acknowledged that playing football could result in grievous injury, and that the risk of injury could increase without protective equipment, this does not satisfy the legal standard of deliberate indifference to a substantial risk of serious harm. Moreover, there is no evidence of prior serious injuries resulting from resident football games at YDC. Thus, the evidence is insufficient to raise a genuine dispute of material fact regarding deliberate indifference in this case. Accordingly, the District Court did not err in rejecting Betts’s Eighth Amendment claim. V. Finally, we turn to Betts’s Fourteenth Amendment claim that he was deprived of substantive due process. Specifically, Betts contends Defendants were deliberately indifferent to his liberty interest in bodily integrity and that allowing him to play tackle football without equipment constituted a state-created danger. The District Court rejected both claims, reasoning: (1) because the deliberate indifference necessary for a violation of due process is the same as that for Eighth Amendment violations, Betts’s failure to show deliberate indifference in the Eighth Amendment context doomed his substantive due process claim; and (2) Betts failed to establish a state-created danger because the alleged behavior did not shock the conscience. Betts, 2009 WL 2913846, at *6-7. To support his substantive due process claims, Betts points to the same evidence he cited in support of his Eighth Amendment claim. Defendants argue that these claims are barred by the “more-specific-provision rule” because Betts’s complaints concerning the conditions of his confinement are properly cognizable under the Eighth Amendment. In the alternative, Defendants contend that the District Court properly found evidence of deliberate indifference to be lacking. Noting its “reluctante] to expand the concept of substantive due process,” the Supreme Court has established the “more-specific-provision rule.” County of Sacramento v. Lewis, 523 U.S. 833, 843-44, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Under this rule, “if a constitutional claim is covered by" } ]

[ { "docid": "7942615", "title": "", "text": "at said term thereof, and writ of error from such judgment is now allowed to said defendant, and bond fixed therefor to operate as supersedeas in the sum of $2000. “Done and certified this 3rd day of March, a.d. 1885, in open court.” We do not see that any distinct question of law is stated .on Which the judges differed: In every instance it is what infer ence should be drawn from the facts found in the case, or rather from the evidence. Take the first question. Does it refer to want of legislative action in' regard to the power, or to want of constitutional power, in the legislature? Or does it refer to the want of proper action by the town authorities, or to want of the recital of their action in the face of the bond. ■' As to the second question, it appears to present a simple question of fact as to the actual issue of the bonds by the defendant. The third is very much like the first. The fourth and fifth are still -less presentations of any distinct propositions of law, but are mixed propositions of law and fact, in regard to which the court cannot know precisely where the'division of opinion arose on a question óf law alone. . And finally, it is very clear that the whole .case has been sent here for us to decide, with the aid of a few. suggestions from the circuit judges, of the difficulties they have found in doing so. It presents nothing like as clear a case as that of a demurrer to an indictment, which demurrer recited the grounds on which it was made, but which this court held presented no statement of the question of law on which the judges differed. United States v. Briggs, 5 How. 208. We repeat that this procedure is not intended to enable the parties in the Circuit Court to bring up the entire case to be .retried here. It is meant to meet a case where, two judges sitting, a clear and distinct proposition of law, material to" } ]

[ { "docid": "12790464", "title": "", "text": "to March 3, 1891, the appellate jurisdiction was limited by the sum or value of the matter in dispute, but the jurisdiction on certificate was not dependent thereon, and, after final judgment or decree, if the amount in controversy reached the jurisdictional amount, the whole case was open for consideration on error or appeal, while, if it fell below that, only the questions certified could be examined. Allen v. St. Louis Bank, 120 U. S. 20; Dow v. Johnson, 100 U. S. 158. It has always been held that the whole case could not be certified. Jewell v. Knight, 123 U. S. 426, 433. In short, under the Revised Statutes, as to civil cases, the danger of the wheels of justice being blocked by difference of opinion was entirely obviated, and the provision for a certificate operated to give the benefit of review where the amount in controversy was less than that prescribed as essential to our jurisdiction, while as to criminal cases a certificate of division was the only mode in which alleged errors could be reviewed. The first act of Congress which authorized a criminal ease to be brought from the Circuit Court of the United States to this court, except upon a certificate of division of opinion, was the act of February 6, 1889, c. 113, § 6, 25 Stat. 655, by which it was enacted that “in all cases of conviction” of a “capital crime in any court of the United States,” the final judgment “against the respondent” might, on his application, be reexamined, reversed or affirmed by this court on writ of error. Up to that time this court had no general authority to review on error or appeal the judgments of the Circuit Courts of the United States in cases within their criminal jurisdiction. United States v. Sanges, 144 U. S. 310, 319; Cross v. United States, 145 U. S. 571, 574. By section four of the judiciary act of March 3,1891, c. 517, 26 Stat. 826, it was provided that “ the review, by appeal, by writ of error or otherwise, from the" }, { "docid": "13010777", "title": "", "text": "been accomplished the Court of Appeals apparently -found itself in a similar quandary, and this resulted in the certificate under consideration. Doubtless the determination of contested questions in cases properly brought before us involves the resolution of doubts, if any are entertained, in respect of the scope of particular decisions, but we cannot approve of the mode ¿dopted in this case of ascertaining the precise bearing of former judgments. In civil cases the intention of Congress as to the certification provided for in sections five and six of the act of March 3, 189.1, 26 Stat. 826, c. 517, is to be arrived at in the light of the rules prevailing prior to that date in relation to certificates of division of opinion under sections 650, 652 and 693 of the Revised Statutes. Maynard v. Hecht, 151 U. S. 324. It was well settled as to them that each question had to be a distinct point or proposition of law, clearly stated, so that it could be definitely answered without regard to other issues of law in the case; that each question must be a question of law only and not of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment on the weight or effect of testimony or facts adduced in the 'cause; • and could not embrace the whole case, even where its decision turned upon matter of law only, and even though it were split up in the form of questions. Jewell v. Knight, 123 U. S. 426, 432; Fire Ins. Association v. Wickham, 128 U. S. 426. By the sixth section of the Judiciary Act, the Circuit Court of Appeals is not permitted to certify the whole case to us, though we may require that to be done when questions are certified, or may bring up by certiorari any case in which the decision of that court would otherwise be final. But here the entire record is transmitted as part of the certificate, and the answer to the question propounded contemplates an examination of the whole case." }, { "docid": "12790463", "title": "", "text": "to certify questions. Insurance Company v. Dunham, 11 Wall. 1. By the act of June 1, 1872, c. 255, 17 Stat. 196, whenever in any proceedings or suit in a Circuit Court there occurred any difference of opinion between the judges, the opinion of the presiding judge was to prevail for the time being; but upon the entry of a final judgment, decree or order, and a certificate of division of opinion as under the act of 1802, either party might remove the case to this court on writ of error or appeal, according to the nature of the case. This act continued in force about two years, when it was supplanted by §§ 650, 652 and 693 of the Revised Statutes, by which its provisions were restricted to civil suits and proceedings; and by §§ 651 and 697 the provisions of § 6 of the act of 1802 were reenacted as to criminal cases. United States v. Sanges, 144 U. S. 310, 321. These sections are printed in the margin. In civil cases, prior to March 3, 1891, the appellate jurisdiction was limited by the sum or value of the matter in dispute, but the jurisdiction on certificate was not dependent thereon, and, after final judgment or decree, if the amount in controversy reached the jurisdictional amount, the whole case was open for consideration on error or appeal, while, if it fell below that, only the questions certified could be examined. Allen v. St. Louis Bank, 120 U. S. 20; Dow v. Johnson, 100 U. S. 158. It has always been held that the whole case could not be certified. Jewell v. Knight, 123 U. S. 426, 433. In short, under the Revised Statutes, as to civil cases, the danger of the wheels of justice being blocked by difference of opinion was entirely obviated, and the provision for a certificate operated to give the benefit of review where the amount in controversy was less than that prescribed as essential to our jurisdiction, while as to criminal cases a certificate of division was the only mode in which alleged errors" }, { "docid": "12790468", "title": "", "text": "after judgment, the whole subject be reexamined on writ of error from one or the other court. -This result, in itself, we think could not have been intended, and it is wholly inconsistent with the object of the act of March 3, 1891, which was to relieve this court and to distribute between it and the Circuit Courts of Appeals, substantially, the entire appellate jurisdiction over the Circuit Courts of the United States. McLish v. Roff, 141 U. S. 661; Lau Ow Bew's case, 144 U. S. 47; Construction Co. v. Railway Co., 148 U. S. 372. \"We are of opinion that the scheme of the act of March 3, 1891, precludes the contention that certificates of division of opinion may still be had under sections 651 and 697 of the Revised Statutes. Review by appeal, by writ of error or otherwise, must be as prescribed by the act, and review by certificate is limited by the act to the certificate by the Circuit Courts, made after final judgment, of questions raised as to their own jurisdiction and to the certificate by the Circuit Courts of Appeals of questions of law in relation to which, our advice is sought as therein provided, and these certificates are governed by the same general rules as were formerly applied to certificates of division. Maynard v. Hecht, 151 U. S. 324; Columhus Watch Co. v. Robbins, 148 U. S. 266. It is true that repeals by implication are not favored, but we cannot escape the conclusion that, tested by its scope, its obvious purpose, and its terms, the act of March 3, 1891, covers the whole subject-matter under consideration, and furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error or certificate. Its provisions and those of the Revised Statutes in this regard cannot stand together, and the argument db ineonvenienii that, in cases of doubt below, the remedy by certificate ought to be available, is entitled to no weight in the matter of construction. The result is that the certificate must be dismissed, and it is so ordered. Ms." }, { "docid": "13010776", "title": "", "text": "Mk. Chief Justice Fullee, after stating the case, delivered ■ the opinion of the court, It appears from the opinion of the Circuit Court, sent up as part of the certificate and reported in 64 Fed. Rep. 241, that that court was impressed with the conviction that the complainant had been defrauded, but that the court could see no way to accord relief under the decision in United States v. Throckmorton, 98 U. S. 61, although the result might be different.if the. decision in Marshall v. Holmes, 141 U. S. 589, were followed. In other words, the Circuit Court indicated that it could have proceeded without difficulty on the principles expounded in either case if the other were out of the way. Finding it impossible to reconcile these cases, or to make a . definitive choice between them, because United States v. Throckmorton was cited without disapproval in Marshall v. Holmes, the Circuit Court sustained the demurrer pro forma, and the case was transferred to the Circuit Court of Appeals. ' But when this had been accomplished the Court of Appeals apparently -found itself in a similar quandary, and this resulted in the certificate under consideration. Doubtless the determination of contested questions in cases properly brought before us involves the resolution of doubts, if any are entertained, in respect of the scope of particular decisions, but we cannot approve of the mode ¿dopted in this case of ascertaining the precise bearing of former judgments. In civil cases the intention of Congress as to the certification provided for in sections five and six of the act of March 3, 189.1, 26 Stat. 826, c. 517, is to be arrived at in the light of the rules prevailing prior to that date in relation to certificates of division of opinion under sections 650, 652 and 693 of the Revised Statutes. Maynard v. Hecht, 151 U. S. 324. It was well settled as to them that each question had to be a distinct point or proposition of law, clearly stated, so that it could be definitely answered without regard to other issues of" }, { "docid": "23174122", "title": "", "text": "former act, and section five restricts the power of this court, in all suits in which its appellate jurisdiction is invoked by reason of the existence of a question involving the jurisdiction of the Circuit Court over the case, to the review of that question only. The act did not contemplate several appeals in the same suit at the same time, but gave to a party to a suit in the Circuit Court where the question of the jurisdiction of the court over the parties or subject-matter was raised and put in issue upon the record at the proper time and in the proper way, the -right to a review by this court, after filial judgment or decree against him, of the'decision upon that question only^ or by the Circuit Courts of Appeals on the whole case. McLish v. Roff, 141 U. S. 661, 668. And the. section under consideration declares in express terms that when the case is brought directly to this court the question of jurisdiction so in issue shall be certified for decision. The rules in relation to certificates of division of opinion in civil causes under sections 650, 652, 693 of the Revised Statutes Avere well settled. Each question had .to be a distinct point or proposition of law, clearly stated, so that it could be'definitely answered without regard to the other issues of law in the case; to be a question of law only, and not a question of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment on the weight or effect of testimony or facts adduced in the case; and could not embrace the whole case, even where its decision turned upon matter of law only, and even though it were split up in the form of questions. Fire Insurance Association v. Wickham, 128 U. S. 426; Dublin Township v. Milford Savings Institution, 128 U. S. 510. The same rules were applicable to the certificate of points on division of opinion on the hearing or trial of criminal proceedings under sections 651 and 697." }, { "docid": "23174124", "title": "", "text": "United States v. Hall, 131. U. S. 50; United States v. Perrin, 131 U. S. 55. And prior to the act of February 25, 1889, this court had jurisdiction of a case brought up on certificate of' division of opinion on the question whether the Circuit Court had jurisdiction of it. Baltimore & Ohio Railroad Co. v. Marshall County Supervisors, 131 U. S. App. xcix. By section six of the act of March 3, 1891, c. 517, 26 Stat. 826, S28, it is provided “that in every such subject within its appellate jurisdiction, the Circuit Court of Appeals may at any time certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision.” In Columbus Watch Co. v. Robbins, 148 U. S. 266, it was held that in order to give this court jurisdiction over questions or propositions of law sent up by a Circuit Court of Appeals for decision, it was necessary that the questions or propositions should be clearly and distinctly certified to, and should show that the instruction of this court was desired in a particular case as to their proper decision. And reference was there made to the rules laid down in reference to certificates on division of opinion above adverted to. So in Cincinnati, Hamilton &c. Railroad Co. v. McKeen, 149 U. S. 259, it was held that the act of March 3, 1891, does not contemplate the certification of questions of law to be answered in view of the entire record in the cause, although this court may, if it sees fit, order the entire record to be sent up, and thereupon decide the case as if it had been brought up by writ of error' or appeal. We think the intention of Congress as to the certification mentioned in both sections is to be arrived at in the light of the rules theretofore prevailing as to certifying from the court below, and since, in the instance of an appeal upon the question of jurisdiction under the" }, { "docid": "18473856", "title": "", "text": "whole record and cause may be sent up to it for its ‘ consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal.” And it is also provided, in respect of cases in which the judg merits and decrees of the Circuit Courts of Appeals are made final, that “ it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its revision and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.”' Thus, in the interest of jurisprudence and uniformity of decision, the supervision of this court, by way of advice or direct revision, is secured.. In re Woods, Petitioner, 143 U. S. 202; Lau Ow Bew, Petitioner, 141 U. S. 583; 144 U. S. 47, 58. In order, however, to invoke the exercise of our jurisdiction in the instruction of the Circuit Courts of Appeals as to the proper decision of questions or propositions of law arising in the classes of cases mentioned, it is necessary that such questions or propositions should be clearly and distinctly certified, and that the certificate should show that the instruction of this court as to their proper decision is desired. It was long ago settled, under the statutes authorizing questions upon which two judges of the Circuit Court were divided in opinion to be certified to this court, that each question so certified must be a distinct point or proposition of law, clearly stated, so that it could be definitely answered; Perkins v. Hart, 11 Wheat. 237; Sadler v. Hoover, 7 How. 646; Jewell v. Knight, 123 U. S. 426; 432; Fire Ins. Assoc. v. Wickham, 128 U. §. 426; and that if it appeared upon the record that no division of opinion actually existed among the judges of the Circuit Court, this court would not consider a question as certified even" }, { "docid": "13048267", "title": "", "text": "within our rulings in the cases of Jewell v. Knight, 123 U. S. 426; Fire Insurance Association v. Wickham, 128 U. S. 426; Maynard v. Hecht, 151 U. S. 324; Graver v. Faurot, 162 U. S. 435 ; Cross v. Evans, 167 U. S. 60, and United States v. Union Pacific Railroad, ante, 505. In the case last cited, in speaking of the rules which govern the certification provided for in sections 5 and 6 of the Judiciary Act of March 3,1891, c. 517, 26 Stat. 826, the Chief Justice repeated those rules as derived from prior decisions, and said that “ each question had to be a distinct point or proposition of law, clearly stated, so that it could be distinctly answered without regard to the other issues of law in the case; to be a question of law only and not a question of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment upon the weight or effect of testimony or facts adduced in the case, arid could not embrace the whole case, even where its decision turned upon matter of law only, and even though it was split up in the form of questions’.” Guided by these rules, we find that the first question does not comply with their requirements. No single question of law is plainly raised therein. The record only shows that the case was commenced in a state court, and was removed upon the petition of one of the individual defendants into the Circuit Court of the United States for the District of North Dakota. Neither party (so far as appears from the record) raised any question' of jurisdiction in the Circuit Court to hear and determine the whole case. \"Whether there is some defect supposed to exist in the petition for removal, or whether the controversy was or was not a separable one, or whether the citizenship of the different parties was not sufficiently alleged or did not sufficiently appear; whether the petition was filed in the proper time, or the bond was sufficient" }, { "docid": "23023721", "title": "", "text": "not be determined except upon a view of all the attendant circumstances. The third question, whether \"such sale,\" if fraudulent, would be voidable in favor of the whole or of part only of the plaintiffs' debts, could not arise until the sale had been decided to be fraudulent. The fourth and fifth questions frankly submit in two subdivisions the general question, whether \"under the circumstances\" the sale was fraudulent as against the plaintiffs. As was recently said by this court, speaking of questions certified in similar form, \"They are mixed propositions of law and fact, in regard to which the court cannot know precisely where the division of opinion arose on a question of law alone;\" and \"It is very clear that the whole case has been sent here for us to decide, with the aid of a few suggestions from the circuit judges of the difficulties they have found in doing so.\" Waterville v. Van Slyke, 116 U.S. 699, 704. Upon this record, therefore, this court cannot decide, either that the decree of the Circuit Court should be affirmed, or that it should be reversed or modified, but must order the Appeal to be dismissed." }, { "docid": "16785903", "title": "", "text": "Mr. Chief Justice Fuller delivered the opinion of the court. ,This is a certificate under section six of the Judiciary Act of March 3,1891, 26 Stat. 826, q. 517, and it is settled as to such certification that each question propounded must be a definite point'or proposition of law clearly stated, so that it can be definitely answered without regard to other issues of law in the case; that each question must be a question of law only and not of fact, or of mixed law and.fact; and that the certificate cannot embrace the whole case, even where its decision turns on matter of law only and even though it be split up in the form of questions. Graver v. Faurot, 162 U. S. 435 ; McKeen v. Railroad Oompamy, 149 U. S. 249. Buie 37 provides: “ Where, under section six of the said act, a Circuit Court of Appeals shall certify to. this court a question or proposition of law, concerning which it desires the instruction of this court for its proper decision, the certificate shall contain a proper statement of the facts on which such question or proposition of law arises.”, In this case there is no such statement, but the entire record is certified, and the questions contemplate an examination of the whole case and in large part its decision on the merits. We cannot regard this certificate as in compliance with the rule, and are constrained to decline to answer the second and third questions, but we think we may properly answer the first question in yiew of the narrow limits by which it was apparently intended to-be. circumscribed. The judicial power extends to controversies between citizens of different States ; and between citizens of a State and citizens or subjects of foreign States; but the Judiciary Act of September. 24, 1789, provided that the District and Circuit Courts of the United'States should not “have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless the suit might have been prosecuted in" }, { "docid": "7942607", "title": "", "text": "Mr. Justice Miller delivered the opinion of the court. This is a writ of error to the. Circuit Court for the District of Kansas. In that court there was a judgment against the plaintiff in error for the sum of §1282.06. The amount is too small to give this court jurisdiction on a writ of error to a Circuit Court. There is, however, a certificate of division of opinion between the circuit judge and the district judge sitting at the trial without a jury. We have decided that under the act of 1872, a case may be brought to this court on a certificate of division, without regard •to the amount in controversy. Dow v. Johnson, 100 U. S. 158. But that decision was based upon a valid certificate which presented properly questions material to the decision of the case. If this were not necessary to our jurisdiction, a form of certificate, which might' present no question that this court can consider, might be used to require of it a review of other matters than those on which the court divided, though the amount in controversy is insignificant. It is, therefore, only where the certificate does present, in accordance with the statute, a division of opinion in such a manner and on such a question as to give this court jurisdiction that the amount in controvers}7\" can be disregarded as an element of jurisdiction. As to the character of the certificate on which this court will act, the statute of 1872, and the Revised Statutés have made no change, and the decisions of this court, are full on that subject. The substance of these decisions, as applicable to the case before us, is, that each question so certified must contain a distinct proposition of law which this court can answer negatively or affirmatively, and that the whole case cannot be presented by a recital of the evidence and interrogatories so framed as to require .this court to decide the whole case on mixed' propositions 'of law and fact. In short, while such a statement of facts must accompany the .certificate" }, { "docid": "23023713", "title": "", "text": "Mr. Justice Gray delivered, the opinion of the court. The claim of each plaintiff being for less than $5000, the amount in dispute, as was admitted at the bar, is insufficient of itself to.give this court jurisdiction. Stewart v. Dunham, 115 U. S. 61 ; Gibson v. Shufeldt, 122 U. S. 27. The jurisdiction of this case therefore depends upon the statutes which provide that when, on the trial or hearing of any civil suit or proceeding before the Circuit Court held by the Circuit Judge and the District Judge, or by either of them and a Justice of this court, any question occurs upon which the opinions of the judges are opposed, the opinion of the presiding judge shall prevail and be considered as the opinion of the court for the time being; “ the point upon which they so disagreed shall, during the same term, be stated under the direction of the judges, and certified, and such certificate shall be entered of record; ” and the final judgment or decree “ may be reviewed, and' affirmed or reversed or modified, by the Supreme Court, on writ of error or appeal.” Eev. Stat. §§ 650, 652, 693. Under these statutes, and the earlier ones authorizing questions upon which two judges of the Circuit Court were divided in opinion to be certified to this court, it has been established by repeated decisions that each question so certified must be a distinct point or proposition of law, clearly stated, so that it can be definitely answered, without regard to other issues of law or of fáet in the case. The points certified must be questions of law only, and not questions of fact, or of mixed law and fact — \"not such as involve or imply conclusions or judgment by the court upon the weight or effect of testimony or facts adduced in the cause.\" Dennistoun v. Stewart, 18 How. 565, 568; Wilson v. Barnum, 8 How. 258; Silliman v. Hudson River Bridge Co., 1 Black, 582; Daniels v. Railroad Co., 3 Wall. 250; Brobst v. Brobst, 4 Wall. 2; Weeth" }, { "docid": "22623268", "title": "", "text": "Mr. Justice Hughes, after making the foregoing statement, delivered the opinion of the court. Preliminarily, objection is raised to the authority of this court to answer the questions certified. Under § 239 of the Judicial Code, questions may be certified by the Circuit Court of Appeals “in any case within its appellate jurisdiction, as defined in séction one hundred and twenty-eight”; and § 128 provides that the Circuit Courts of Appeals “shall exercise appellate jurisdiction to review by appeal or writ of error final decisions in the District Court,” etc. The argument is that an application to a Circuit Court of Appeals for a writ of prohibition is an original proceeding. But the jurisdiction of the Circuit Courts of Appeals is exclusively appellate (Act of March 3, 1891, §§ 2, 6, c. 517, 26 Stat. 826, 828; Jud. Code, §§ 117, 128; Whitney v. Dick, 202 U. S. 132, 137, 138); and their authority to issue writs is only that which may properly be deemed to be auxiliary to their appellate power. Jud. Code, § 262; Rev. Stat., § 716; Act of March 3, 1891, c. 517, § 12, 26 Stat. 826, 829; Whitney v. Dick, supra; McClellan v. Carland, 217 U. S. 268, 279, 280. Section 128 defines the class of cases in which the Circuit Court of Appeals may exercise appellate jurisdiction, and, where a case falls within this class, a proceeding to procure the issue of a writ in aid of the exercise of that jurisdiction must be regarded as incidental thereto and hence as being embraced within the purview of § 239 authorizing the court to certify questions of law. It is also objected that the certificate sends up the entire case. It is a familiar rule that this court can not be required through a certificate under § 239 to pass upon questions of fact, or mixed questions of law and fact; or to accept a transfer of the whole case; or to answer questions of objectionable generality — which instead of presenting distinct propositions of law cover unstated matters ‘lurking in the record’ —" }, { "docid": "12790469", "title": "", "text": "own jurisdiction and to the certificate by the Circuit Courts of Appeals of questions of law in relation to which, our advice is sought as therein provided, and these certificates are governed by the same general rules as were formerly applied to certificates of division. Maynard v. Hecht, 151 U. S. 324; Columhus Watch Co. v. Robbins, 148 U. S. 266. It is true that repeals by implication are not favored, but we cannot escape the conclusion that, tested by its scope, its obvious purpose, and its terms, the act of March 3, 1891, covers the whole subject-matter under consideration, and furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error or certificate. Its provisions and those of the Revised Statutes in this regard cannot stand together, and the argument db ineonvenienii that, in cases of doubt below, the remedy by certificate ought to be available, is entitled to no weight in the matter of construction. The result is that the certificate must be dismissed, and it is so ordered. Ms. Justice Brewer did not hear the argument and took no part in the decision of this case. Sec. 650. Whenever, in any civil suit or proceeding in a Circuit Court held by a Circuit Justice and a Circuit Judge or a District Judge, or by a Circuit Judge and a District Judge, there occurs any difference of opinion between the judges as to any matter or thing to be decided, ruled or ordered by the court, the opinion of the presiding justice or judge shall prevail, and be considered the opinion of the court for the time being. Sec. 651. Whenever any question occurs on the trial or hearing of any criminal proceeding before a Circuit Court upon which the judges are divided in opinion, the point upon which they disagree, shall, during the same term, upon the request of either party, or of their counsel, be stated under the direction of the judges, and certified, under the seal.of the court, to the Supreme Court at their next session; but nothing herein contained shall prevent" }, { "docid": "23023720", "title": "", "text": "Magniac v. Thompson, 7 Pet. 348; Bean v. Patterson, 122 U.S. 496. Many of the cases cited in the learned arguments at the bar were of voluntary conveyances, or arose under a bankrupt act, or presented the question whether there was sufficient evidence of fraudulent intent to be submitted to a jury, or were decided by a court authorized to pass upon the facts as well as the law, and therefore have no direct or important bearing upon this case. Not one of the questions certified presents a distinct point of law; and each of them, either in express terms or by necessary implication, involves in its decision a consideration of all the circumstances of the case. The first question, whether the six weeks' delay in taking judgment upon the warrant of attorney made the subsequent sale voidable by the plaintiffs, as well as the second question, whether evidence of the debtor's fraudulent intent and of the preferred creditors' knowledge of that intent was requisite to render \"said sale\" void as against the plaintiffs, could not be determined except upon a view of all the attendant circumstances. The third question, whether \"such sale,\" if fraudulent, would be voidable in favor of the whole or of part only of the plaintiffs' debts, could not arise until the sale had been decided to be fraudulent. The fourth and fifth questions frankly submit in two subdivisions the general question, whether \"under the circumstances\" the sale was fraudulent as against the plaintiffs. As was recently said by this court, speaking of questions certified in similar form, \"They are mixed propositions of law and fact, in regard to which the court cannot know precisely where the division of opinion arose on a question of law alone;\" and \"It is very clear that the whole case has been sent here for us to decide, with the aid of a few suggestions from the circuit judges of the difficulties they have found in doing so.\" Waterville v. Van Slyke, 116 U.S. 699, 704. Upon this record, therefore, this court cannot decide, either that the decree of the" }, { "docid": "12994731", "title": "", "text": "Mb. Chief -Justice Fullee, after stating the case, delivered the opinion of the court. It is settled that the certification provided for in sections five and six of the Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826, is governed by the rules laid down in respect of certificates of division under the Revised Statutes. Columbus Watch Company v. Robbins, 148 U. S. 266; Maynard v. Hecht, 151 U. S. 324; Graver v. Faurot, 162 U. S. 435; Cross v. Evans, 167 U. S. 60. By those rules,- as repeated in these cases from prior decisions, “ each question had to be a distinct point or proposition of law, clearly stated, so that it could be distinctly answered without regard to the other issues of law in the case ; to be a question of law only, and not a question of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment upon the weight or effect of testimony or facts adduced in the case; and could not embrace the whole case, even where its decision turned upon matter of law only, and even though it was split up in the form of questions.” Fire Insurance Association v. Wickham, 128 U. S. 426 ; Dublin Township v. Milford Savings Institution, 128 U. S. 510. The questions propounded in this certificate do not present distinct points or propositions of law, clearly stated, so that each could be distinctly answered without regard to the other issues of law involved, and they obviously bring the whole case up for consideration and disposition. Elaborate argument on behalf of the Government. was made at the bar, dealing with the Delaware treaties of 1831, 1854, 1860, 1861 and 1866, and the construction of various provisions thereof; with the construction of the Pacific Railroad act of July 1, 1862, c. 120, 12 Stat. 489; and'also with the legislation in relation to the incorporation of the Leavenworth, Pawnee and \"Western Railroad Company; its change of name ; and consolidation with other railroad .companies, under the name of the" }, { "docid": "18473857", "title": "", "text": "of our jurisdiction in the instruction of the Circuit Courts of Appeals as to the proper decision of questions or propositions of law arising in the classes of cases mentioned, it is necessary that such questions or propositions should be clearly and distinctly certified, and that the certificate should show that the instruction of this court as to their proper decision is desired. It was long ago settled, under the statutes authorizing questions upon which two judges of the Circuit Court were divided in opinion to be certified to this court, that each question so certified must be a distinct point or proposition of law, clearly stated, so that it could be definitely answered; Perkins v. Hart, 11 Wheat. 237; Sadler v. Hoover, 7 How. 646; Jewell v. Knight, 123 U. S. 426; 432; Fire Ins. Assoc. v. Wickham, 128 U. §. 426; and that if it appeared upon the record that no division of opinion actually existed among the judges of the Circuit Court, this court would not consider a question as certified even though it were certified in form. Railroad Co. v. White, 101 U. S. 98; Webster v. Cooper, 10 How. 54; Nesmith v. Sheldon, 6 How. 41. We regard the certificate before us as essentially defective. It does not specifically set forth the question or questions to be answered, and, apart from that, it does not state that instruction is desired for the proper decision of such question or questions. On the contrary, it appears therefrom that the court had arrived at a conclusion, nothing doubting, (for reasons, we may remark, given in its' opinion reported in 52 Fed. Eep. 337,) but that, because the Circuit Court of Appeals for another circuit had reached the opposite conclusion, under similar circumstances, the request for instruction is preferred. While the fact that the Circuit Court of Appeals for one circuit has rendered a different judgment from that of the Circuit Court of Appeals for another, under the same conditions, might furnish ground for a certiorari on proper application, the assertion of the existence of such difference and of" }, { "docid": "23174123", "title": "", "text": "decision. The rules in relation to certificates of division of opinion in civil causes under sections 650, 652, 693 of the Revised Statutes Avere well settled. Each question had .to be a distinct point or proposition of law, clearly stated, so that it could be'definitely answered without regard to the other issues of law in the case; to be a question of law only, and not a question of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment on the weight or effect of testimony or facts adduced in the case; and could not embrace the whole case, even where its decision turned upon matter of law only, and even though it were split up in the form of questions. Fire Insurance Association v. Wickham, 128 U. S. 426; Dublin Township v. Milford Savings Institution, 128 U. S. 510. The same rules were applicable to the certificate of points on division of opinion on the hearing or trial of criminal proceedings under sections 651 and 697. United States v. Hall, 131. U. S. 50; United States v. Perrin, 131 U. S. 55. And prior to the act of February 25, 1889, this court had jurisdiction of a case brought up on certificate of' division of opinion on the question whether the Circuit Court had jurisdiction of it. Baltimore & Ohio Railroad Co. v. Marshall County Supervisors, 131 U. S. App. xcix. By section six of the act of March 3, 1891, c. 517, 26 Stat. 826, S28, it is provided “that in every such subject within its appellate jurisdiction, the Circuit Court of Appeals may at any time certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision.” In Columbus Watch Co. v. Robbins, 148 U. S. 266, it was held that in order to give this court jurisdiction over questions or propositions of law sent up by a Circuit Court of Appeals for decision, it was necessary that the questions or propositions" }, { "docid": "22103198", "title": "", "text": "the recent case of United, States v. Rider, 163 U. S. 132, affords an important, if not controlling precedent. From the beginning of this century until the passage of the act of 1891, both in civil and in criminal cases, questions of law, upon which two judges of the Circuit Court were divided in opinion, might be certified by them to this court for decision. Acts of: April 29, 1802, c. 31, § 6; 2 Stat. 159; June 1, 1872, c. 255, § 1; 17 Stat. 196; Rev. Stat. §§ 650-652, 693, 697; Insurance Co. v. Dunham, 11 Wall. 1, 21; United States v. Sanges, 144 U. S. 310, 320. But in United States v. Rider, it was adjudged by this court that the act of 1891 had superseded and repealed the earlier acts authorizing questions of law to be certified from the Circuit Court to this court; and the grounds of that adjudication sufficiently appear by the statement of the effect of the act of 1891 in two passages of the opinion: “ Appellate jurisdiction was given in all criminal cases by writ of error, either from this court or from the Circuit Courts of Appeals, and in all civil cases by appeal or error, without regard to the amount in controversy, except as. to appeals or writs of error to or from the Circuit Courts of Appeals in cases not made final, as specified in § 6.” “It is true that repeals by implication are not favored, but we cannot escape the conclusion that, tested by its scope, its obvious purpose and its terms, the act of March 3, 1891, covers the whole subject-matter under consideration, and furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error or certificate.” 163 TJ. S. 138-140. That judgment was thus rested upon two successive propositions : First, that the act of 1891 gives appellate jurisdiction,. either to this court or to the Circuit Court of Appeals, in all criminal cases, and in all civil cases “ without regard to the amount in controversy.” Second, that the act," } ]

[ { "docid": "7926727", "title": "", "text": "refusing to order that a subpoena be issued for service on Dr. Ewing. Admittedly, Welsh was unable to pay the fees of the witness. The only other requirement of the present Rule 17(b), Fed.R.Crim.P., quoted supra note 4, is “a satisfactory showing * * * that the presence of the witness is necessary to an adequate defense.” The showing must be “satisfactory” to the district court, which means that the district court exercises a broad discretion in granting or denying a motion for the issuance of a subpoena made by a defendant financially unable to pay the fees of the witness. The abuse of process so often encountered emphasizes the necessity for such discretion. Clearly, however, the discretion is not absolute, but is a sound judicial discretion subject to review on appeal. The breadth of the discretion to be exercised by the trial court under Rule 17(b) is considerably narrowed by two constitutional rights of the defendant: (1) the Sixth Amendment right “to have compulsory process for obtaining witnesses in his favor”; and (2) the Fifth Amendment right to protection against unreasonable discrimination which means that, as between those financially able and those financially unable to pay the fees of the witness, there should be no more discrimination than is necessary to protect against abuse of process. We agree with the test prescribed by the D.C. Circuit that, “ * * * if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, that the averments are untrue or that the request is otherwise frivolous.” Greenwell v. United States, 1963, 317 F.2d 108, 110. That test places the bur den of showing frivolity or abuse of process on the Government, where it properly belongs. Applying that test, Welsh was clearly entitled to a subpoena for Dr. Ewing. The witness resided in Mobile, the place of trial. Welsh asserted that Dr. Ewing “will testify" } ]

[ { "docid": "21922921", "title": "", "text": "under the rule the grant or denial of a subpoena was committed to the sound discretion of the trial court and was not to be disturbed in the absence of exceptional circumstances. In 1966 the rule was amended to make issuance mandatory upon “a satisfactory showing . . . that the presence of the witness is necessary to an adequate defense.” That requirement leaves broad discretion in the district court by allowing the trial judge to weigh numerous factors, including materiality, relevancy, and competency, in deciding whether to grant the request for a subpoena. See United States v. Hathcock, 441 F.2d 197 (5th Cir. 1971); Welsh v. United States, 404 F.2d 414 (5th Cir. 1968); Findley v. United States, 380 F. 2d 752 (10th Cir. 1967). But we have held, quoting Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108, 110 (1963), that the amended requirement means “ . . .if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, that the averments are untrue or that the request is otherwise frivolous.” . That test places the burden of showing frivolity or abuse of process on the Government, where it properly belongs. Welsh v. United States, supra, 404 F.2d at 417-418. See United States v. Hathcock, supra. We need not decide whether under the Welsh test the denial of a subpoena directed to Dr. Alderete was, standing alone, an error, because we conclude that the subsequent denial of a subpoena for Dr. Murney was reversibly erroneous. In his November 1 motion, appellant’s counsel stated that Dr. Murney had examined appellant recently and would testify concerning his sanity at the time of the offense charged. It does not appear from anything in the record that the request was frivolous or the averments untrue. Such testimony would have been material and relevant to the only factual question really in issue. Without either Dr." }, { "docid": "319899", "title": "", "text": "witnesses to appellant’s defense. At that hearing, appellant testified concerning each requested witness; his statements generally contained a description of the job each person performed in one or more of the corporations involved in appellant’s business ventures and often some indication of the general information possessed by each person. At the hearing’s conclusion, the trial judge ruled: Select four that you want from Salt Lake City and we will cause subpoenas to be issued for them. You are liberty [sic] to bring all of them here at your own expense. No reference is to be drawn that the Court is satisfied as to the truthfulness of this affidavit. Rule 17(b), F.R.Crim.P., provides in pertinent part: The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. A motion under Rule 17(b) is addressed to the sound discretion of the trial court. United States v. Lepiscopo, 458 F.2d 977 (10th Cir. 1972); United States v. Plemons, 455 F.2d 243 (10th Cir. 1972); Speers v. United States, 387 F.2d 698 (10th Cir. 1967), cert. den’d, 391 U.S. 956, 88 S.Ct. 1864, 20 L.Ed.2d 871 (1968). In United States v. Julian, 469 F.2d 371 (10th Cir. 1972), Judge Doyle analyzed Rule 17(b) in the following manner: . defendant, in order to secure witnesses at government expense, must show, first, that he is financially unable to pay the fees of the witness and, secondly, that the presence of the witnesses is necessary to an adequate defense. If he satisfies the court as to these two factors, the rule provides that the court shall order that a subpoena be issued for service on the named witness. Clearly, a defendant has the burden of making a “satisfactory showing” to the court concerning his financial ability and the necessity of the witnesses to his defense. Appellant points to two Fifth Circuit cases" }, { "docid": "5393681", "title": "", "text": "of the trial court and was not to be disturbed in the absence of exceptional circumstances. In 1966 the rule was amended to make issuance mandatory upon ‘a satisfactory showing . . . that the presence of the witness is necessary to an adequate defense.’ That requirement leaves broad discretion in the district court by allowing the trial judge to weigh numerous factors, including materiality, relevancy, and competency, in deciding whether to grant the request for a subpoena. See United States v. Hathcock, 441 F.2d 197 (5th Cir. 1971); Welsh v. United States, 404 F.2d 414 (5th Cir. 1968); Findley v. United States, 380 F.2d 752 (10th Cir. 1967). But we have held, quoting Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108, 110 (1 963), that the amended requirement means ‘. . . if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record,' that the av-erments are untrue or that the request is otherwise frivolous. ‘ . . . That test places the burden of showing frivolity or abuse of process on the Government, where it properly belongs.’ Welsh v. United States, supra, 404 F.2d at 417-418. See United States v. Hathcock, supra.” The trial judge found that it was unnecessary to call all of the fifteen witnesses to an allegedly exculpatory conversation because their testimony would be cumulative only, and he therefore issued Rule 17(b) subpoenas to only three witnesses to the conversation. The trial judge, acting upon information received from Lynott’s counsel, also found that one of the witnesses that Lynott desired to have subpoenaed would not give relevant testimony concerning the transaction for which his testimony was being subpoenaed, and therefore the trial judge refused to issue a Rule 17 (b) subpoena for that witness. Under the Moudy standard, it is clear that the district court did not err. District Courts have the discretion to prevent the" }, { "docid": "22473863", "title": "", "text": "In his petition Pegram stated that “these witnesses are necessary to his defense in this case in that their testimony will be used for alibi as well as impeachment purposes” along with an allegation that he was without funds to pay the costs of securing the attendance of the witnesses. The District Court denied the petition for failure to state with sufficient particularity the nature of the testimony sought from the witnesses. Rule 17(b) of the Federal Rules of Criminal Procedure, 18 U.S.C., authorizes the District Court to order the issuance of subpoenas and secure the attendance of witnesses without cost for defendants who are unable to pay the necessary fees “ * * * upon a satisfactory showing * * * that the presence of the witness is necessary to an adequate defense.” The inclusion of the requirement of a “satisfactory showing” to the District Court has been held to vest the District Court with a broad discretion in granting or denying petitions under Rule 17(b). See Welsh v. United States, 404 F.2d 414, 417 (5th Cir. 1968); Findley v. United States, 380 F.2d 752, 754 (10th Cir. 1967). Here it is clear that the District Court committed no abuse of discretion in denying appellant Pegram’s application for the subpoenas and the writs. The mere allegation that the witnesses would be necessary for “alibi as well as impeachment purposes” is the most general of statements and does not constitute the sufficient averment of facts to constitute a “substantial showing” that the witnesses would be necessary to the presentation of an adequate defense. See Findley v. United States, supra. III. PRETRIAL DISCOVERY MOTIONS. The first issue which affects each of the appellants concerns the correctness of the District Court’s rulings on certain pretrial discovery motions. The first motion for discovery, filed approximately one month after the arraignment of all the appellants, requested permission to inspect and copy certain records and documents obtained by the government in the investigation of the case. The District Court granted part of the request and denied part, but the appellants have raised no issue on" }, { "docid": "5393680", "title": "", "text": "to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.” The current status of Rule 17(b) has been cogently analyzed in this Circuit’s opinion in United States v. Moudy, 5 Cir. 1972, 462 F.2d 694, 697-698 (footnotes omitted): “Prior to 1966, Rule 17(b) provided that a court ‘may’ order a subpoena issued but that an indigent defendant requesting it was required to support his motion with an affidavit stating the testimony he expected from the witness and showing further its materiality and that the defendant could not safely go to trial without the witness. Appellant courts took the view that under the rule the grant or denial of a subpoena was committed to the sound discretion of the trial court and was not to be disturbed in the absence of exceptional circumstances. In 1966 the rule was amended to make issuance mandatory upon ‘a satisfactory showing . . . that the presence of the witness is necessary to an adequate defense.’ That requirement leaves broad discretion in the district court by allowing the trial judge to weigh numerous factors, including materiality, relevancy, and competency, in deciding whether to grant the request for a subpoena. See United States v. Hathcock, 441 F.2d 197 (5th Cir. 1971); Welsh v. United States, 404 F.2d 414 (5th Cir. 1968); Findley v. United States, 380 F.2d 752 (10th Cir. 1967). But we have held, quoting Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108, 110 (1 963), that the amended requirement means ‘. . . if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by" }, { "docid": "2264531", "title": "", "text": "Id. 109 S.Ct. at 2902. It is clear that Link’s criminal acts were part of a long term relationship with an organization that existed for a criminal purpose. We conclude that there was sufficient evidence to support a finding of a “pattern of racketeering activity.” (2) Did the trial court err in failing to permit appellant to call Frank Hano-phy as a witness? The Sixth Amendment to the Constitution of the United States provides in pertinent part as follows: “In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor....” As we stated in United States v. Garmany, 762 F.2d 929 (11th Cir.1985): Federal Rule of Criminal Procedure 17 governs the issuance of subpoenas in criminal cases.... For a defendant who is financially unable to pay these costs Rule 17(b) requires the court to subpoena witnesses on that defendant’s behalf “upon a satisfactory showing ... that the presence of the witness is necessary to an adequate defense.” Id. at 933, 934. “The grant or denial of a Rule 17(b) motion is committed to the discretion of the district court and is subject to reversal on appeal only upon a showing of abuse of that discretion.” U.S. v. Rinchack, 820 F.2d 1557,1566 (11th Cir.1987) (citing United States v. Hegwood, 562 F.2d 946 (5th Cir.1977)), and other cases. Appellant relies upon the following language from Hegwood: Welsh [v. United States, 404 F.2d 414, 417 (5th Cir.1968)], further establishes that once the defendant asserts facts which, if true, would be relevant to any issue, the motion for a subpoena must be granted unless the assertions are facially incredible or unless the government can show that they are untrue or that the request is frivolous.... United States v. Hegwood, 562 F.2d 946, 953 (5th Cir.1977). This Court has recently discussed the requirements for a defendant in making a Rule 17(b) request. We stated as follows: As a threshold matter, a defendant making a Rule 17(b) request bears the burden of articulating specific facts that show the relevancy and necessity of the requested witness’s testimony." }, { "docid": "16062700", "title": "", "text": "named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. Fed.R.Crim.P. 17(b). Defendants requested the issuance of a number of subpoenas under Rule 17(b). The district court denied all but one of those requests. This Court has generally given district courts wide discretion in determining whether subpoenas should issue under Rule 17(b). As this Court recently stated: Rule 17(b), Fed.R.Crim.P., governs an indigent’s right to have witnesses subpoenaed at Government expense. Of course, the issue is not entirely procedural; it implicates both the sixth amendment right to compulsory process and the fifth amendment protection against unreasonable discrimination based upon the ability to pay. We have long held, however, that, within the limits imposed by the Constitution, “[t]he decision to grant or deny a Rule 17(b) motion is vested in the sound discretion of the trial court.” As a threshold matter, an indigent seeking a Rule 17(b) subpoena must allege facts that, if true, demonstrate “the necessity of the requested witness’ testimony.” The trial court may then exercise its discretion to deny the subpoenas if the Government demonstrates that the indigent’s averments are untrue, or if the requested testimony would be merely cumulative or irrelevant. United States v. Webster, 750 F.2d 307, 329-30 (5th Cir.1984) (citations omitted). Defendants contend that the district court impermissibly placed the burden on them, a burden they contend rests on the Government. This Court holds that the defendants failed to make the threshold requirement necessary to shift the burden to the Government. As this Court has previously stated: “This [threshold] requirement makes total sense in view of the plain language of the rule and the fact that Rule 17 is clearly not a discovery device.” United States v. Hegwood, 562 F.2d 946, 952 (5th Cir.1977), cert. denied, 434 U.S. 1079, 98 S.Ct. 1274, 55 L.Ed.2d 787 (1978) (emphasis added). See United States v. Fischel, 686 F.2d 1082, 1095 & n. 19 (5th Cir.1982). Defendants make only" }, { "docid": "17356269", "title": "", "text": "trial court did not believe that Allen had a legitimate need for a subpoena of Mrs. Wood. FRCrP 17(b) provides that the trial court shall order that a subpoena be issued for a named witness on application of an indigent defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. Reviewing Allen’s request in the setting in which it was made, the trial court did not abuse its discretion in de-nying the request. United States v. Becker, 444 F.2d 510 (4th Cir. 1971); United States v. Baxter, 492 F.2d 150, 196 (9th Cir. 1973); United States v. Conder, 423 F.2d 904 (6th Cir. 1970); and Findley v. United States, 380 F.2d 752 (10th Cir. 1967). Allen offered little, if any, indication of what specific testimony he wished to elicit from Mrs. Wood or what part her further testimony would have in his defense. If he wished to set Mrs. Wood up for impeachment, he had previously had the opportunity and declined it. The trial court acted within its discretion in denying his request in these circumstances. See United States v. Kaufman, 393 F.2d 172 (7th Cir. 1968). In all events, when Goldberg was called as a witness for the defense, he was allowed to testify as to what Mrs. Wood had said to the reporter, so any failure of the trial court to issue the subpoena on this account, if error, was harmless. IV Since the trial court indicated at the time of sentencing that motions to set aside two of the three sentences should be made if the convictions were affirmed, it is not appropriate for us to require compliance with United States v. Shelton, 465 F.2d 361 (4th Cir. 1972). V We have reviewed the other assignments of error made by the appellants and find them to be without merit. Accordingly, the judgments of conviction are affirmed and the case remanded only for motions concerning vacation of sentences as previously mentioned by the district court. Affirmed and" }, { "docid": "8902742", "title": "", "text": "in Rule 17(b) motions. This amendment eliminated the necessity of supporting by affidavit the motion or request for the subpoena of a witness at government expense, but it requires, in addition to proof of financial inability to pay witness fees, a satisfactory showing that the presence of the witness is necessary to an adequate defense. Although the amendment inserted the word “shall” for “may”, the amended rule does not provide an absolute right to have any witness produced for the defense at government expense. The trial court must determine whether the requested witnesses are necessary to an adequate defense of an accused, and in making such determination it has the duty to examine the existing circumstances, and should deny the issuance of unnecessary subpoenaes and prevent useless or abusive issuance of process. Necessarily the determination whether witnesses requested under Rule 17(b) are required for an adequate defense of an accused rests largely upon the judgment of the trial court. Murdock v. United States, 10 Cir., 283 F.2d 585, cert. denied 366 U.S. 953, 81 S.Ct. 1910, 6 L.Ed.2d 1246; United States v. Zuideveld, 7 Cir., 316 F.2d 873, cert. denied 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612. Here, com petent court-appointed psychiatrists examined the accused before trial. The reports of all the doctors who had previously examined into his mental condition for twenty years were before the jury. Accordingly, we are satisfied that the trial court’s conclusion that the physical presence of the witnesses requested was not necessary for an adequate defense of Findley is supported by the record. Affirmed. . Amended Rule 17(b), F.R.Crim.P. provides : “Defendants Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness" }, { "docid": "8902743", "title": "", "text": "1910, 6 L.Ed.2d 1246; United States v. Zuideveld, 7 Cir., 316 F.2d 873, cert. denied 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612. Here, com petent court-appointed psychiatrists examined the accused before trial. The reports of all the doctors who had previously examined into his mental condition for twenty years were before the jury. Accordingly, we are satisfied that the trial court’s conclusion that the physical presence of the witnesses requested was not necessary for an adequate defense of Findley is supported by the record. Affirmed. . Amended Rule 17(b), F.R.Crim.P. provides : “Defendants Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.” . The motion requested the court to order the issuance of subpoenas for the appearance of nine medical doctors now residing at: 1. Milwaukee, Wisconsin; date of examination 1951 and Dec. 1955 2. Woodland Hills, California; date of examination Oct., 1951, and Dee. 1955 3. Miami, Florida; date of examination May, 1962 4. Rusk, Texas; date of examination Dec., 1965 5. Terre Haute, Indiana; date of examination July, 1959 6. San Antonio, Texas; date of examination July, 1958 7. San Antonio, Texas; date of examination July, 1958 8. Miami, Florida; date of examination March, 1959 9. Denver, Colorado; date of examination September, 1966; this doctor was designated by the court and was available as a witness. . Findley previously had been tried for a criminal offense in the United States District Court for the District of Florida, where he interposed the defense of insanity. In reversing the" }, { "docid": "6129177", "title": "", "text": "Garmany states that due to his limited resources, he was forced to be selective in choosing among several essential defense witnesses. This in turn hindered the defense Garmany was able to present at his trial and, according to the appellant, requires reversal of his convictions. To be sure, a criminal defendant’s sixth amendment right to compulsory process is a fundamental component of due process itself. Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1922-1923, 18 L.Ed.2d 1019 (1967); United States v. Garner, 581 F.2d 481, 488 (5th Cir.1978). To effectively implement this constitutional guarantee, the accused has the right to subpoena witnesses on his or her own behalf to testify at a trial. Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev., 567, 587 (1978). Federal Rule of Criminal Procedure 17 governs the issuance of subpoenas in criminal cases, and Rule 17(d) prescribes that service of any subpoena, except those issued on behalf of the United States, must be accompanied by payment of witness fees and travel expenses. For a defendant who is financially unable to pay these costs, Rule 17(b) requires the court to subpoena witnesses on that defendant’s behalf “upon a satisfactory showing ... that the presence of the witness is necessary to an adequate defense.” In such instances, the government bears the cost of securing the attendance of the witnesses. See Fed.R. Crim.P. 17(b). Appellant does not challenge the requirement that financially able criminal defendants must bear the cost of bringing their own witnesses to the trial, but rather he alleges that the amounts he was charged here were excessive, and thereby inhibited his right to compulsory process. We cannot agree. First, appellant never raised this contention in the district court. We do not ordinarily consider claims raised for the first time on appeal. United States v. Silva, 611 F.2d 78, 80 (5th Cir.1980). Garmany’s failure to pursue this claim in the district court also leaves us without a record for evaluating the factual basis for his contentions. As noted above, Rule 17(b) provides that a defendant who is" }, { "docid": "4039188", "title": "", "text": "the facts sworn to in the affidavits, and on oral argument counsel for the appellee stated that the government did not dispute the factual contents of the affidavit. For this reason we deal with the matters set forth in the affidavits as undisputed facts. Federal Rule of Criminal Procedure 17(b) provides: (b) Defendant Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government. An application under Rule 17(b) for compulsory process for a witness at government expense is addressed to the sound discretion of the trial court. Barnes v. United States, 5 Cir. 1967, 374 F.2d 126, cert. denied 389 U.S. 917, 88 S.Ct. 246, 19 L.Ed.2d 273; Thompson v. United States, 5 Cir. 1967, 372 F.2d 826. In Welsh v. United States, 5 Cir. 1968, 404 F.2d 414, we outlined the scope of that discretion: “We hold that the district court erred in refusing to order that a subpoena be issued for service on Dr. Ewing. Admittedly, Welsh was unable to pay the fees of the witness. The only other requirement of the present Rule 17(b), Fed.R.Crim.P., quoted supra, note 4, is ‘a satisfactory showing * * * that the presence of the witness is necessary to an adequate defense.’ The showing must be ‘satisfactory’ to the district court, which means that the district court exercises a broad discretion in granting or denying a motion for the issuance of a subpoena made by a defendant financially unable to pay the fees of the witness. The abuse of process so often encountered" }, { "docid": "4039189", "title": "", "text": "is addressed to the sound discretion of the trial court. Barnes v. United States, 5 Cir. 1967, 374 F.2d 126, cert. denied 389 U.S. 917, 88 S.Ct. 246, 19 L.Ed.2d 273; Thompson v. United States, 5 Cir. 1967, 372 F.2d 826. In Welsh v. United States, 5 Cir. 1968, 404 F.2d 414, we outlined the scope of that discretion: “We hold that the district court erred in refusing to order that a subpoena be issued for service on Dr. Ewing. Admittedly, Welsh was unable to pay the fees of the witness. The only other requirement of the present Rule 17(b), Fed.R.Crim.P., quoted supra, note 4, is ‘a satisfactory showing * * * that the presence of the witness is necessary to an adequate defense.’ The showing must be ‘satisfactory’ to the district court, which means that the district court exercises a broad discretion in granting or denying a motion for the issuance of a subpoena made by a defendant financially unable to pay the fees of the witness. The abuse of process so often encountered emphasizes the necessity for such discretion. Clearly, however, the discretion is not absolute, but is a sound judicial discretion subject to review on appeal. “The breadth of the discretion to be exercised by the trial court under Rule 17(b) is considerably narrowed by two constitutional rights of the defendant: (1) the Sixth Amendment right ‘to have compulsory process for obtaining witnesses in his favor’; and (2) the Fifth Amendment right to protection against unreasonable discrimination which means that, as between those financially able and those financially unable to pay the fees of the witness, there should be no more discrimination than is necessary to protect against abuse of process. We agree with the test prescribed by the D.C. Circuit that, ‘ * * * if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, that the averments" }, { "docid": "319900", "title": "", "text": "17(b) is addressed to the sound discretion of the trial court. United States v. Lepiscopo, 458 F.2d 977 (10th Cir. 1972); United States v. Plemons, 455 F.2d 243 (10th Cir. 1972); Speers v. United States, 387 F.2d 698 (10th Cir. 1967), cert. den’d, 391 U.S. 956, 88 S.Ct. 1864, 20 L.Ed.2d 871 (1968). In United States v. Julian, 469 F.2d 371 (10th Cir. 1972), Judge Doyle analyzed Rule 17(b) in the following manner: . defendant, in order to secure witnesses at government expense, must show, first, that he is financially unable to pay the fees of the witness and, secondly, that the presence of the witnesses is necessary to an adequate defense. If he satisfies the court as to these two factors, the rule provides that the court shall order that a subpoena be issued for service on the named witness. Clearly, a defendant has the burden of making a “satisfactory showing” to the court concerning his financial ability and the necessity of the witnesses to his defense. Appellant points to two Fifth Circuit cases which quote the District of Columbia Circuit as follows: if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, that the averments were untrue or that the request is otherwise frivolous. Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108 (1963). Appellant argues the subpoenas should have been granted because the government did not show any untruthfulness or frivolity and the court did not find appellant had the means to pay witness fees, the number of witnesses was unreasonable, the witnesses would be cumulative, or trial delay would result if subpoenas were issued. The trial court did not specifically state the basis for its restricted grant of the subpoenas motion. It is evident from the record, however, that appellant did not make a satisfactory showing as to the necessity of all sixteen of these witnesses. Appellant" }, { "docid": "16062699", "title": "", "text": "they were Haitian or “because of” protected first amendment freedoms. The defendants’ conclusional allegations of impermissible motive are not sufficient to meet this burden. The mere existence of some selectivity by the government in instituting prosecutions is not per se constitutionally prohibited. United States v. Hoover, 727 F.2d 387, 389 (5th Cir.1984). Absent some invidious element, the government’s decision to prosecute cannot be challenged. Jennings, 724 F.2d at 445 n. 12. The defendants’ allegations and evidence of improper motive are insufficient to take this case out of the general rule that prosecutors have wide latitude in determining which cases to prosecute. As a second argument, the defendants assert that the district court erred in refusing to order the issuance of subpoenas under Rule 17(b) in order that they might present further evidence sufficient to establish selective prosecution. Again, this Court finds no error in the district court’s judgments. Rule 17 provides in pertinent part: (b) Defendants Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. Fed.R.Crim.P. 17(b). Defendants requested the issuance of a number of subpoenas under Rule 17(b). The district court denied all but one of those requests. This Court has generally given district courts wide discretion in determining whether subpoenas should issue under Rule 17(b). As this Court recently stated: Rule 17(b), Fed.R.Crim.P., governs an indigent’s right to have witnesses subpoenaed at Government expense. Of course, the issue is not entirely procedural; it implicates both the sixth amendment right to compulsory process and the fifth amendment protection against unreasonable discrimination based upon the ability to pay. We have long held, however, that, within the limits imposed by the Constitution, “[t]he decision to grant or deny a Rule 17(b) motion is vested in the sound discretion of the trial court.” As a threshold matter, an indigent seeking a Rule" }, { "docid": "4039187", "title": "", "text": "Haynes extensively and in private he was understandably unwilling to guarantee that Haynes would in fact be called to testify as a defense witness. The application was accordingly denied by the district judge. The form of writ of habeas corpus ad testificandum submitted by Sher man in connection with the original application was returned by the U. S. Marshal on March 13, 1970, “unexecuted as defendant’s attorney did not furnish the necessary deposit to cover fees and expenses”. Hathcock urges that the refusal of the trial judge to grant without condition the in forma pauperis application for a writ ad testificandum directed to Haynes deprived appellant of a material witness whose testimony could have been critical to the outcome of the trial, and was an abuse of the discretion vested in the trial judge by F.R.Crim.P. 17(b) and constituted as well a denial of the appellant’s Sixth Amendment right to compulsory process for obtaining witnesses and Fifth Amendment right not to be deprived of his liberty without due process. The government filed no response disputing the facts sworn to in the affidavits, and on oral argument counsel for the appellee stated that the government did not dispute the factual contents of the affidavit. For this reason we deal with the matters set forth in the affidavits as undisputed facts. Federal Rule of Criminal Procedure 17(b) provides: (b) Defendant Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government. An application under Rule 17(b) for compulsory process for a witness at government expense" }, { "docid": "21922920", "title": "", "text": "and of the accused’s time. In a sense, the discretion to enlarge the examination does, as appellant points out, expose him to the possibility of bolstering the government’s case. But, in the end, all concerned — court, counsel, and parties — have an interest in determining if the accused was ineompe-tent at the time of the offense, if that is to be an issue, and we see no prejudice in the court’s ordering that such determination be made sooner rather than later and at a time when the determination is least likely to delay a trial. We conclude, however, that the court reversibly erred in refusing to grant one of the subpoenas requested. Prior to 1966, Rule 17(b) provided that a court “may” order a subpoena issued but that an indigent defendant requesting it was required to support his motion with an affidavit stating the testimony he expected from the witness and showing further its materiality and that the defendant could not safely go to trial without the witness. Appellate courts took the view that under the rule the grant or denial of a subpoena was committed to the sound discretion of the trial court and was not to be disturbed in the absence of exceptional circumstances. In 1966 the rule was amended to make issuance mandatory upon “a satisfactory showing . . . that the presence of the witness is necessary to an adequate defense.” That requirement leaves broad discretion in the district court by allowing the trial judge to weigh numerous factors, including materiality, relevancy, and competency, in deciding whether to grant the request for a subpoena. See United States v. Hathcock, 441 F.2d 197 (5th Cir. 1971); Welsh v. United States, 404 F.2d 414 (5th Cir. 1968); Findley v. United States, 380 F. 2d 752 (10th Cir. 1967). But we have held, quoting Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108, 110 (1963), that the amended requirement means “ . . .if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted," }, { "docid": "22473862", "title": "", "text": "factual pattern. Each of the five defendants was represented by a separate attorney. Under these circumstances the District Court’s concern that granting permission to Grogan or any of the other defendants to personally enter objections to evidence would only serve to confuse an already complicated trial seems well founded. We therefore conclude in light of all the circumstances including Grogan’s acceptance of representation by counsel that the District Court’s denial of Grogan’s request for permission to personally enter objections to the admissibility of evidence had neither the purpose nor the effect of violating Grogan’s constitutional rights in the premises. II. APPELLANT PEGRAM’S RIGHT TO SECURE THE ATTENDANCE OF WITNESSES AT THE TRIAL. The other issue affecting only one of the appellants is whether the District Court committed error in denying appel lant Pegram’s petition for the issuance of subpoenas and writs of habeas corpus ad testificandum at government expense pursuant to Rule 17(b) of the Federal Rules of Criminal Procedure for five persons, all of whom were incarcerated in either federal or state penal institutions. In his petition Pegram stated that “these witnesses are necessary to his defense in this case in that their testimony will be used for alibi as well as impeachment purposes” along with an allegation that he was without funds to pay the costs of securing the attendance of the witnesses. The District Court denied the petition for failure to state with sufficient particularity the nature of the testimony sought from the witnesses. Rule 17(b) of the Federal Rules of Criminal Procedure, 18 U.S.C., authorizes the District Court to order the issuance of subpoenas and secure the attendance of witnesses without cost for defendants who are unable to pay the necessary fees “ * * * upon a satisfactory showing * * * that the presence of the witness is necessary to an adequate defense.” The inclusion of the requirement of a “satisfactory showing” to the District Court has been held to vest the District Court with a broad discretion in granting or denying petitions under Rule 17(b). See Welsh v. United States, 404 F.2d 414," }, { "docid": "22473864", "title": "", "text": "417 (5th Cir. 1968); Findley v. United States, 380 F.2d 752, 754 (10th Cir. 1967). Here it is clear that the District Court committed no abuse of discretion in denying appellant Pegram’s application for the subpoenas and the writs. The mere allegation that the witnesses would be necessary for “alibi as well as impeachment purposes” is the most general of statements and does not constitute the sufficient averment of facts to constitute a “substantial showing” that the witnesses would be necessary to the presentation of an adequate defense. See Findley v. United States, supra. III. PRETRIAL DISCOVERY MOTIONS. The first issue which affects each of the appellants concerns the correctness of the District Court’s rulings on certain pretrial discovery motions. The first motion for discovery, filed approximately one month after the arraignment of all the appellants, requested permission to inspect and copy certain records and documents obtained by the government in the investigation of the case. The District Court granted part of the request and denied part, but the appellants have raised no issue on appeal concerning the correctness of the denial of part of the first motion. Our review of the record discloses no error in the Court’s ruling on this first motion. Approximately one month thereafter appellant Condor filed a motion for production of “all evidence of every kind and character which will be favorable to this accused in the trial of this case.” Among other things the motion requested all evidence tending to impeach or discredit the testimony of William Kenneth Knight and specifically requested all evidence of any leniency promised to Knight in exchange for his testimony. The motion also requested the government to state where and when Knight could be interviewed by counsel for defendants. The final branch in the motion requested that “the entire file of the government in this case be made available to counsel for this defendant.” The Court denied all the requested information except the request for an opportunity to interview codefendant Knight. Pursuant to the Court’s ruling the government made Knight available for an interview by counsel for all of" }, { "docid": "8902741", "title": "", "text": "psychiatrists designated to examine Findley in order to determine his mental condition at the time of the commission of the alleged crime. No contention was made that Findley was incompetent to stand trial. Thereafter two such psychiatrists were appointed, one of whom was requested by Findley’s' counsel. The court also directed that Findley be removed to a local Veterans’ Administration Hospital for examination. A short time before the trial, and apparently after the doctor designated by defense counsel had submitted his report, a motion was filed demanding that all the doctors who had previously made mental examinations of Findley be subpoenaed at government expense to appear personally as witnesses at the trial. The court denied the motion, stating in effect that, under the circumstances, all of these witnesses were not necessary for an adequate defense of Findley. At the trial the reports of all the doctors were accepted in evidence to show the results of the former mental examinations. It is argued that the 1966 amendment to Rule 17(b) stripped the court of discretionary powers in Rule 17(b) motions. This amendment eliminated the necessity of supporting by affidavit the motion or request for the subpoena of a witness at government expense, but it requires, in addition to proof of financial inability to pay witness fees, a satisfactory showing that the presence of the witness is necessary to an adequate defense. Although the amendment inserted the word “shall” for “may”, the amended rule does not provide an absolute right to have any witness produced for the defense at government expense. The trial court must determine whether the requested witnesses are necessary to an adequate defense of an accused, and in making such determination it has the duty to examine the existing circumstances, and should deny the issuance of unnecessary subpoenaes and prevent useless or abusive issuance of process. Necessarily the determination whether witnesses requested under Rule 17(b) are required for an adequate defense of an accused rests largely upon the judgment of the trial court. Murdock v. United States, 10 Cir., 283 F.2d 585, cert. denied 366 U.S. 953, 81 S.Ct." } ]

[ { "docid": "1176529", "title": "", "text": "have required that liability under § 12(2) as a “seller” must be premised upon strict privity between the buyer and seller, so that a plaintiff may sue only his immediate seller. See, Sanders v. John Nuveen & Co., Inc., 619 F.2d 1222, 1226 (7th Cir.1980); Collins v. Cignetics Corp., 605 F.2d 110, 113 (3rd Cir.1979). However, this Circuit has taken a broader view of the statute, and has allowed a plaintiff to sue a defendant under § 12(2) where that defendant is a “significant participant” in, or one who “proximately caused”, a sale of securities. See, e.g., Admiralty Fund v. Jones, 677 F.2d 1289, 1294 (9th Cir.1982). In Lawler v. Gilliam, 569 F.2d 1283, 1287-88 (4th Cir. 1978), we fully considered this issue, and held that the status of the entity as a “seller” of securities should be determined by whether the entity was a\" “substantial factor” in the sale of the securities. In most of the decisions on this issue, suit was commenced against the broker-dealers. Here, however, plaintiffs seek to establish that Baker, Watts, the dealer-manager of the Partnership, was a “seller” of the securities. We pause to note that although the “substantial factor” test has been applied almost exclusively to broker-dealers, nothing in law or logic indicates that this test should not likewise be applied to a dealer-manager in the position of Baker, Watts. Baker, Watts sought to resolve this issue in its favor in a pre-trial motion for summary judgment. 599 F.Supp. 749. The court below denied that motion, stating that: Baker, Watts was the exclusive agent for the purpose of finding investment subscribers, and organized the entire offering; it had total responsibility for selecting other soliciting dealers who were authorized to offer and sell the unit under a fee-sharing management with it. Baker, Watts alleges that those plaintiffs who purchased through other dealers were induced to buy, not by its actions, but by statements and negotiations made by the soliciting dealers. Whether its activities were a “substantial factor” in causing plaintiffs to purchase through dealers such as Walsh is a question of fact which remains" } ]

[ { "docid": "15661794", "title": "", "text": "proximate cause: the line of demarcation must be drawn in terms of cause and effect: To borrow a phrase from the law of negligence, did the injury to the plaintiff flow directly and proximately from the actions of this particular defendant? 448 F.2d at 693, quoting Lennerth v. Men-denhall, 234 F.Supp. 59, 65 (N.D.Ohio 1964). In the particular fact situation presented by Hill York, the following factors persuaded the court that the defendants proximately caused the plaintiff’s injury: The [defendants] sought out the original incorporators of Florida Franchise and then trained them to solicit additional capital for the corporation. They provided the sales brochures designed to secure the additional capital. They rendered advice on every aspect of the corporate formation and subsequent development. In fact, the defendants did everything but effectuate the actual sale. 448 F.2d at 693. See also, Lewis v. Walston & Co., Inc., 487 F.2d 617, 621-22 (5th Cir. 1973), where the court reaffirmed the principle established in Hill York, that one need not be in privity with the purchaser to be liable as a seller. In that case, the defendant was a registered broker’s representative who “touted the . . stock heavily to the plaintiffs”, and arranged the initial meeting at which the stock was sold. The court held that, in view of these established facts, the jury could have reasonably inferred that the defendant was a “substantial factor” in causing the purchases. 487 F.2d at 622. This court has only recently addressed the question of liability under section 12(2), in a case involving substantially different facts. In Pharo v. Smith, 621 F.2d 656 (5th Cir. 1980) the court held that a reading of Hill York and Lewis limit limits sellers under section 12 (i) to those in privity with the purchaser and (ii) to those whose participation in the buy-sell transaction is a substantial factor in causing the transaction to take place. Mere participation in the events leading up to the transaction is not enough. 621 F.2d at 667. Participation in the sale of a security, therefore, is an important factor only as it relates" }, { "docid": "6517321", "title": "", "text": "state a material fact necessary to make the statements it made not misleading in its offer or sale of the Integrated paper to Ryder. . A few years ago, the Supreme Court denied a petition for certiorari in Davis v. Avco Fin. Serv., Inc., 739 F.2d 1057 (6th Cir.1984), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 381 (1985), a case in which the Sixth Circuit noted that the Court has never passed on the definition of \"seller” in section 12(2). . The Supreme Court has frequently observed that the provisions of the Securities Acts were “enacted to protect against fraud and promote the free flow of information in the public dissemination of securities.” Rubin v. United States, 449 U.S. 424, 431, 101 S.Ct. 698, 702, 66 L.Ed.2d 633 (1981) (citations omitted). . See Collins v. Signetics Corp., 605 F.2d 110, 113 (3d Cir.1979); Sanders v. John Nuveen & Co., 619 F.2d 1222, 1226 (7th Cir.1980). . See Wilson v. Ruffa & Hanover, P.C., 844 F.2d 81, 85 (2d Cir.1988) (recognizing liability for nonselling collateral participants who possess the requisite scienter); Pharo v. Smith, 621 F.2d 656, 664-68 (5th Cir.1980) (The proper test for section 12 generally \"lies between the antiquated 'strict privity’ concept and the overbroad 'participation' concept which would hold all those liable who participated in the events leading up to the transaction,” and thus focuses on whether “the injury to the plaintiff flow[ed] directly and proximately from the actions of this particular defendant.”) (citation omitted); Davis v. Avco Fin. Serv., 739 F.2d 1057, 1063-68 (6th Cir.1984) (adopting proximate cause test under section 12 generally); Lawler v. Gilliam, 569 F.2d 1283, 1287 (4th Cir.1978) (Under section 12(1), “[(liability may be imposed on any person who actively solicits an order, partici pates in the negotiations, or arranges the sale,” but \"the definition excludes persons who executed an unsolicited order or whose minor role in the transaction shows that they have no causal connection with it.”); Anderson v. Aurotek, 774 F.2d 927, 930 (9th Cir.1985) (Liability under section 12 depends on whether the acts of the participants are" }, { "docid": "22915913", "title": "", "text": "cause and effect: To borrow a phrase from the law of negligence, did the injury to the plaintiff flow directly and proximately from the actions of this particular defendant?” 448 F.2d 692-93 (citations and footnotes omitted). The Hill York defendants fell within this definition of “seller” because their actions were the motivating force behind the security sales in question. They trained those who actually made the sales and provided the promotional literature, including the misleading information, communicated to the plaintiffs. “In fact, the defendants did everything but effectuate the actual sale[s].” Finally, we opined that “The hunter who seduces the prey and leads it to the trap he has set is no less guilty than the hunter whose hand springs the snare.” Id. at 693. We have been called upon only once since Hill York to determine whether one not in privity with a security purchaser should be held accountable as a section 12 seller. In Lewis v. Walston & Co., 487 F.2d 617 (5th Cir. 1973), a registered representative of the Walston & Co. brokerage firm touted the stock of Allied Automation, Inc. to the plaintiffs, notified them when Allied stock became available for purchase, and, then, arranged the plaintiffs’ purchase of some stock from Allied. The securities had not been registered. In a sections 12(1) and (2) suit in district court, the plaintiffs established that false statements had been made by the Walston representative to induce them to purchase the unregistered stock and obtained a $70,000 jury verdict against the representative and her principal, Walston. In affirming the judgment against the registered representative, we noted that section 12 sellers have been held to include “parties [other than the party who passes title] who participate in the negotiations of or arrangements for the sale of unregistered securities [and] . . . parties responsible for bringing about sales of securities . . . .” Id. at 621. We then recast the Hill York “proximate cause” test as follows: were the defendant’s actions “a ‘substantial factor’ in bringing about the plaintiffs’ purchases.” Id. at 622. Applying that test, we did not" }, { "docid": "7380714", "title": "", "text": "issuer and underwriters. Plaintiffs have cited no cases, however, in which these theories have been applied to subject participating underwriters or an issuer whose securities were sold pursuant to a firm commitment underwriting to section 12 liability for sales effected by other participating underwriters. Katz v. David. W. Katz & Co., 1984 Fed.Sec.L. Rep. (CCH) H99,669 (S.D.N.Y.1984), conerned an attorney who allegedly participated directly in the sale. Judge Sand explicitly stated that a “plaintiff, at mimimum, must show some meaningful participation in an ‘offer or sale’ on the part of those charged with Section 12 liability.” Id. at 97,687. See also Stokes v. Lokken, 644 F.2d 779, 785 (8th Cir.1981) (defendant who was “two steps removed” from sale does not engage in “sufficient degree of participation” for § 12(2) liability); Pharo v. Smith, 621 F.2d 656, 667 (5th Cir.1980) (defendant must be “substantial factor” rather than someone who “mere[ly] participates]”); Lawler v. Gilliam, 569 F.2d 1283, 1287-88 (4th Cir.1978) (same); Lewis v. Walston & Co., 487 F.2d 617, 622 (5th Cir.1973) (finding defendant liable because she “touted ... stock heavily to the plaintiffs”). In Admiralty Fund v. Jones, 677 F.2d 1289, 1294 n. 4 (9th Cir.1982), not only did the court require knowledge and significant participation but it went on to remark that in the context of section 12(2) the broad reading given to the term “seller” in In re Caesers Palace may merit reexamination in light of recent Supreme Court decisions prescribing “a strict statutory construction approach to the securities acts” and rejecting expansion through the use of tort and criminal principles. At least one court has explicitly rejected the idea that participation in an underwriting syndication is tantamount to aiding, abetting, or conspiring in subsequent individual sales. See In re the Gap Stores Securities Litigation, 79 F.R.D. 283, 307 (N.D.Cal.1978). In his analysis, Judge Williams examined the practical ramifications of using section 12(2) to subject each participating underwriter to liability because he “caused each of the sales simply by his membership in the underwriting syndicate.” Id. To thus stretch the statute’s language would mean that “[n]one of the" }, { "docid": "22384400", "title": "", "text": "substantial-factor test reflects a conviction that § 12 liability “must lie somewhere between the narrow view, which holds only the parties to the sale, and the too-liberal view which would hold all who remotely participated in the events leading up to the transaction.” Lennerth v. Mendenhall, 234 F. Supp. 59, 65 (ND Ohio 1964). That court elected to “borrow a phrase from the law of negligence” and to premise liability on proximate cause. It imposed § 12(1) liability on the issuer that transferred title and the issuer’s president, vice president, and another employee. The Fifth Circuit adopted the proximate cause rationale in Hill York Corp. v. American International Franchises, Inc., 448 F. 2d 680, 693 (1971) (holding that promoters of a nationwide franchising scheme were § 12 sellers), and two years later refined the doctrine to impose liability on defendants whose actions were a “ ‘substantial factor’ ” in causing a plaintiff’s purchases. See Lewis v. Walston & Co., 487 F. 2d 617, 622 (CA5 1973) (affirming § 12(1) judgment against a brokerage firm and its representative who touted unregistered securities and arranged for their purchase by the plaintiff). A number of courts have followed that view. See Lawler v. Gilliam, 569 F. 2d, at 1287-1288 (§ 12(1)); Adalman v. Baker, Watts & Co., 807 F. 2d 359, 363 (CA4 1986) (§ 12(2)); Davis v. Avco Financial Services, Inc., 739 F. 2d 1057, 1067 (CA6 1984) (§ 12(2)), cert. denied, 470 U. S. 1005 (1985); Stokes v. Lokken, 644 F. 2d 779, 785 (CA8 1981) (§ 12 generally); Foster v. Jesup & Lament Securities Co., 759 F. 2d 838, 843-844 (CA11 1985) (§ 12 generally). The Ninth Circuit has shaped its own version of the test. See Anderson v. Aurotek, 774 F. 2d 927, 930 (1985) (imposing § 12 liability on “ ‘partid- pants’ whose acts are “both necessary to and a substantial factor in the sales transaction’ ”). See also SEC v. Rogers, 790 F. 2d 1450, 1456 (CA9 1986) (explaining that the “necessary” and “substantial factor” prongs require separate showings: “The first prong . . . requires a" }, { "docid": "18421343", "title": "", "text": "110 (3d Cir.1979). The Fourth and Eighth Circuits have read the term “seller” to include those whose participation in the sale was a “substantial factor in causing the transaction to take place.” Stokes v. Lokken, 644 F.2d 779 (8th Cir.1981); Lawler v. Gilliam, 569 F.2d 1283, 1287 (4th Cir.1978). The Fifth and Ninth Circuits have read “seller” even more expansively to encompass those whose actions proximately and directly caused the injury to plaintiffs. SEC v. Seaboard Corp., 677 F.2d 1289, 1294 (9th Cir.1982), Junker v. Crory, 650 F.2d 1349, 1360 (5th Cir.1981). The Seventh Circuit, by which this Court is bound, has stated that Section 12(2) “explicitly requires privity between plaintiff-purchaser and defendant-seller____” Sanders v. John Nuveen & Co., Inc., 619 F.2d 1222 (7th Cir.1980), cert. denied, 450 U.S. 1005, 101 S.Ct. 1719, 68 L.Ed.2d 210 (1981). Plaintiff correctly points out that the Seventh Circuit’s statement in Sanders, supra, is dictum, but it is nonetheless a clear expression of that court’s opinion on the issue and is persuasive, particularly in the absence of authority in this Circuit to the contrary. Indeed, the only recent authority in this Circuit supports the defendants’ argument that Section 12(2) requires strict privity. Kennedy v. Nicastro, 503 F.Supp. 1116, 1118 (N.D.Ill.1980). Most importantly, however, courts have noted that the Supreme Court repeatedly has read the securities laws less expansively. See, e.g., Collins v. Signetics Corp., 605 F.2d at 113 (the Court’s recent “teachings ... militate against excessively expansive readings” of the liability provisions of the securities laws). Accordingly, this Court holds that Section 12(2) requires strict privity between the purchaser and the seller. Plaintiff argues that even a “strict privity” approach does not preclude a finding that a broker, such as Cantor, Fitzgerald, who sells securities on behalf of another is liable under Section 12(2). To follow Beck’s suggestion would render meaningless the “strict privity” requirement; it is hard to imagine what “strict privity” means if it is not that title of ownership must pass from the seller to the purchaser. Although it is true that the defendant in Sanders, supra, was a broker, John" }, { "docid": "19938955", "title": "", "text": "the plaintiff ignores federal securities decisions issued contemporaneously with the 1977 TSA amendment, which was explicitly drafted to impart greater protection to investors than § 12(a)(2) as currently interpreted. Plaintiffs claim that the broad interpretation of a “seller” before the 1977 Amendment to the TSA, the comment to which states that the definition of seller is analogous to that in Section 12 of the Securities Act of 1933, is what the drafters of the TSA intended to apply, not a strict privity definition. Thus the Court should look only to federal securities decisions up to the 1977 amendment that provided very expansive definitions of \"sell” and \"seller” in an effort to effectuate the Act’s remedial purpose See, e.g., Cady v. Murphy, 113 F.2d 988, 990 (1st Cir., 1940); Zachman v. Erwin, 186 F.Supp. 681, 685-87 (S.D.Tex.1959). The Court observes that Fifth Circuit first took a proximate cause approach to defining a § 12 \"seller,” and later refined it to reach defendants whose actions were a \"substantial factor” in causing a plaintiff to purchase securities. Hill York Corp. v. American International Franchises, 448 F.2d 680, 695 (5th Cir.1971) (\"seller” is not limited to person who passed title); Lewis v. Walston & Co., 487 F.2d 617, 621-22 (5th Cir.1973) (even though broker was not a conventional seller, i.e., person who parts with the stock in exchange for consideration, broker’s actions were a “substantial factor” and proximate cause of Plaintiffs’ purchases). The Fifth Circuit’s doctrine was subsequently abrogated by Pinter v. Dahl, 486 U.S. 622, 649-51, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988) (\"There is no support in the statutory language or legislative history for expansion of § 12(1) primary liability beyond persons who pass title and persons who 'offer,' including those who 'solicit' offers. Indeed, § 12’s failure to impose express liability for mere participation in unlawful sales transactions suggests that Congress did not intend that the section impose liability on participants' collateral to the offer or sale. When Congress wished to create such liability, it had little trouble doing so.”). As noted, this Court’s decision, while rejecting as too expansive the" }, { "docid": "22384401", "title": "", "text": "its representative who touted unregistered securities and arranged for their purchase by the plaintiff). A number of courts have followed that view. See Lawler v. Gilliam, 569 F. 2d, at 1287-1288 (§ 12(1)); Adalman v. Baker, Watts & Co., 807 F. 2d 359, 363 (CA4 1986) (§ 12(2)); Davis v. Avco Financial Services, Inc., 739 F. 2d 1057, 1067 (CA6 1984) (§ 12(2)), cert. denied, 470 U. S. 1005 (1985); Stokes v. Lokken, 644 F. 2d 779, 785 (CA8 1981) (§ 12 generally); Foster v. Jesup & Lament Securities Co., 759 F. 2d 838, 843-844 (CA11 1985) (§ 12 generally). The Ninth Circuit has shaped its own version of the test. See Anderson v. Aurotek, 774 F. 2d 927, 930 (1985) (imposing § 12 liability on “ ‘partid- pants’ whose acts are “both necessary to and a substantial factor in the sales transaction’ ”). See also SEC v. Rogers, 790 F. 2d 1450, 1456 (CA9 1986) (explaining that the “necessary” and “substantial factor” prongs require separate showings: “The first prong . . . requires a defendant’s participation to be a ‘but for’ cause of the unlawful sale, and the second requires the participation to be more than ‘de minimis’ ”). Congress knew of the collateral participation concept and employed it in the Securities Act and throughout its unified program of securities regulation. Liabilities and obligations expressly grounded in participation are found elsewhere in the Act, see, e. g., 15 U. S. C. § 77b(ll) (defining “underwriter,” who is liable under § 5, as including direct and indirect participants), and in the later Roosevelt administration securities Acts. For example, § 9 of the 1934 Act, passed by the same Congress that enacted the Securities Act, creates a private right of action that expressly imposes liability on participants. 15 U. S. C. §78i(e). See Abrams, 15 Ford. Urban L. J., at 925-937. Section 11 of the Securities Act, 15 U. S. C. §77k, lends strong support to the conclusion that Congress did not intend to extend § 12 primary liability to collateral participants in the unlawful securities sales transaction. That section provides" }, { "docid": "6517322", "title": "", "text": "nonselling collateral participants who possess the requisite scienter); Pharo v. Smith, 621 F.2d 656, 664-68 (5th Cir.1980) (The proper test for section 12 generally \"lies between the antiquated 'strict privity’ concept and the overbroad 'participation' concept which would hold all those liable who participated in the events leading up to the transaction,” and thus focuses on whether “the injury to the plaintiff flow[ed] directly and proximately from the actions of this particular defendant.”) (citation omitted); Davis v. Avco Fin. Serv., 739 F.2d 1057, 1063-68 (6th Cir.1984) (adopting proximate cause test under section 12 generally); Lawler v. Gilliam, 569 F.2d 1283, 1287 (4th Cir.1978) (Under section 12(1), “[(liability may be imposed on any person who actively solicits an order, partici pates in the negotiations, or arranges the sale,” but \"the definition excludes persons who executed an unsolicited order or whose minor role in the transaction shows that they have no causal connection with it.”); Anderson v. Aurotek, 774 F.2d 927, 930 (9th Cir.1985) (Liability under section 12 depends on whether the acts of the participants are \"both necessary to and a substantial factor in the sales transaction.”); Stokes v. Lokken, 644 F.2d 779, 785 (8th Cir.1981) (employing substantial factor test). At one time some courts gave section 12(2) an extremely broad reading and held that anyone who participated to any degree in the sale of a security by means of negligent misrepresentations may be considered a \"seller” thereunder. This view has been abandoned. See SEC v. Murphy, 626 F.2d 633, 650 n. 18 (9th Cir.1980). . See, e.g., Pharo v. Smith, 621 F.2d 656, 666-67 (5th Cir.1980); Schillner v. H. Vaughan Clarke & Co., 134 F.2d 875, 878 (2d Cir.1943) (\"Clearly the word [sell] has the same meaning in subdivision (2) as in subdivision (1) of section 12.”); Schneider, Section 12 of the Securities Act of 1933: The Privity Requirement in Contemporary Securities Law Perspective, 51 Tenn.L.Rev. 235, 261 & nn. 144-45 (1983-1984). But see Pharo, 621 F.2d at 666 n. 7 (quotation omitted) (\"[T]he term 'seller' has sometimes been accorded a broader construction under Section 12(2) than under Section 12(1)....\");" }, { "docid": "18421342", "title": "", "text": "law as Professors Loss and Ruder in reaching its conclusion, this Court holds that no private right of action exists under Section 17(a) of the 1933 Securities Act. Accordingly, plaintiffs Section 17(a) claims against all defendants are dismissed pursuant to Rule 12(b)(6). 3. Section 12(2) Claims The Laventhol and Cantor, Fitzgerald defendants have moved to dismiss the plaintiff’s Section 12(2) securities claims on the grounds that Section 12(2) requires strict privity between the purchasers and seller. They contend that because neither Laventhol nor Cantor, Fitzgerald owned title in the Xonics stock, strict privity between those defendants and plaintiff is lacking, and thus the complaint fails to state a claim upon which relief may be granted as to them. A split amongst the circuits exists on whether a plaintiff claiming under Section 12(2) must establish privity between himself and the defendant. The Third Circuit clearly has held that absent some special relationship — i.e., control — a purchaser not in privity with the seller has no claim under Section 12(2). Collins v. Signetics Corp., 605 F.2d 110 (3d Cir.1979). The Fourth and Eighth Circuits have read the term “seller” to include those whose participation in the sale was a “substantial factor in causing the transaction to take place.” Stokes v. Lokken, 644 F.2d 779 (8th Cir.1981); Lawler v. Gilliam, 569 F.2d 1283, 1287 (4th Cir.1978). The Fifth and Ninth Circuits have read “seller” even more expansively to encompass those whose actions proximately and directly caused the injury to plaintiffs. SEC v. Seaboard Corp., 677 F.2d 1289, 1294 (9th Cir.1982), Junker v. Crory, 650 F.2d 1349, 1360 (5th Cir.1981). The Seventh Circuit, by which this Court is bound, has stated that Section 12(2) “explicitly requires privity between plaintiff-purchaser and defendant-seller____” Sanders v. John Nuveen & Co., Inc., 619 F.2d 1222 (7th Cir.1980), cert. denied, 450 U.S. 1005, 101 S.Ct. 1719, 68 L.Ed.2d 210 (1981). Plaintiff correctly points out that the Seventh Circuit’s statement in Sanders, supra, is dictum, but it is nonetheless a clear expression of that court’s opinion on the issue and is persuasive, particularly in the absence of authority in" }, { "docid": "4675315", "title": "", "text": "and Stanfield move to dismiss the third-party complaint pursuant to Rules 12(b)(1), 12(b)(6) and 9(b), F.R.Civ.P., and, in the alternative, for a redesignation of the third-party complaint as an affirmative defense. Rule 8(c), F.R.Civ.P. A. RULE 12(b)(6) MOTION Machinist and Stanfield appear to concede that every requisite element of a Section 12(2) violation has been properly plead ed against them except one. They assert that, as agents or “controlling persons” of the purchasers of Tacoma Boat stock, they cannot as a matter of law be held liable as sellers under Section 12(2). Third-Party Defendants’ Reply Memorandum at 8. It is clear, however, as Machinist and Stanfield themselves concede, see Third-Party Defendants’ Memorandum at 9, that the meaning of “seller” under Section 12(2) has been extended beyond immediate sellers or offerors of securities. Those who act as the immediate seller’s agent, those who are “controlling persons” of the immediate seller, those who actively participated in the sale, either as aiders and abettors or as co-conspirators, or those under similar circumstances may be held liable under Section 12(2) as sellers. See Somerville v. Major Exploration, Inc., 576 F.Supp. 902, 913 (S.D.N.Y.1983) (Carter, J.); De Bruin v. Andromeda Broadcasting Systems, 465 F.Supp. 1276, 1280 (D.Nev.1979); Lorber v. Beebe, 407 F.Supp. 279, 295-296 (S.D.N.Y.1976) (Knapp, J.). In addition, a party “may be held accountable under Section 12(2) if its participation was a substantial factor in effecting the transaction.” November 12 Opinion at 2 (citing Pharo v. Smith, 621 F.2d at 666— 667). E.g., Junker v. Crory, 650 F.2d 1349, 1360 (5th Cir.1981) (“mere participation” in events leading up to transaction is not enough since participation must have been a “substantial factor in causing the transaction to take place”); Lawler v. Gilliam, 569 F.2d 1283, 1287-1288 (4th Cir.1978) (definition of seller includes “all persons whose actions are a substantial factor in causing a purchaser to buy a security”); Hill York Corp. v. Am. Int’l Franchises, Inc., 448 F.2d 680, 692-693, 695 (5th Cir.1971) (proper test is whether injury flows directly and proximately from the defendant’s act); Lazar v. Sadlier, 622 F.Supp. 1248, 1251-1252 (C.D.Cal.1985) (rule" }, { "docid": "4675316", "title": "", "text": "12(2) as sellers. See Somerville v. Major Exploration, Inc., 576 F.Supp. 902, 913 (S.D.N.Y.1983) (Carter, J.); De Bruin v. Andromeda Broadcasting Systems, 465 F.Supp. 1276, 1280 (D.Nev.1979); Lorber v. Beebe, 407 F.Supp. 279, 295-296 (S.D.N.Y.1976) (Knapp, J.). In addition, a party “may be held accountable under Section 12(2) if its participation was a substantial factor in effecting the transaction.” November 12 Opinion at 2 (citing Pharo v. Smith, 621 F.2d at 666— 667). E.g., Junker v. Crory, 650 F.2d 1349, 1360 (5th Cir.1981) (“mere participation” in events leading up to transaction is not enough since participation must have been a “substantial factor in causing the transaction to take place”); Lawler v. Gilliam, 569 F.2d 1283, 1287-1288 (4th Cir.1978) (definition of seller includes “all persons whose actions are a substantial factor in causing a purchaser to buy a security”); Hill York Corp. v. Am. Int’l Franchises, Inc., 448 F.2d 680, 692-693, 695 (5th Cir.1971) (proper test is whether injury flows directly and proximately from the defendant’s act); Lazar v. Sadlier, 622 F.Supp. 1248, 1251-1252 (C.D.Cal.1985) (rule for determining seller liability is one of “substantial participation” or “direct causal link”); Adalman v. Baker, Watts & Co., 599 F.Supp. 749, 751 (D.Md.1984) (Section 12(2) liability extends to those “responsible for bringing about sales of securities they themselves do not own”), aff'd in relevant part, 807 F.2d 359 (4th Cir.1986). The third-party complaint alleges that Machinist and Stanfield negotiated with Tacoma Boat on behalf of Midland Capital; were given full access to Tacoma Boat’s books, records, and personnel in contemplation of the proposed investment; remained in constant contact with a Midland Capital vice-president, Edwin B. Hathaway, who maintained an office at Tacoma Boat from August to December, 1984; hired two accounting firms to investigate the company’s finances; became intimately involved in managing the company’s business and finances before the stock purchase took place; organized additional investors to join with Midland Capital in purchasing Tacoma Boat stock; compiled and distributed the September, 1984 Confidential Memorandum and its Supplement; and represented to the plaintiffs and to the management defendants that Midland Capital had thoroughly investigated Tacoma" }, { "docid": "22384399", "title": "", "text": "who constitutes a § 12 seller. The remaining approach — the aiding and abetting theory — is actually a method by which courts create secondary liability in persons other than the statutory seller. See, e. g., Mayer v. Oil Field Systems Corp., 803 F. 2d 749, 756 (CA2 1986); In re Caesars Palace Securities Litigation, 360 F. Supp. 366 (SDNY 1973); see also Collins v. Signetics Corp., 605. F. 2d 110, 113-114 (CA3 1979) (leaving open whether aiding and abetting liability is available). Because this case deals exclusively with primary liability under § 12(1), we need not consider whether civil liability for aiding and abetting is appropriate under that section. Compare Comment, 1982 Ariz. S. L. J., at 550-577 (endorsing aiding and abetting liability under § 12(2)); Ruder, 120 U. Pa. L. Rev., at 620-644 (same), with Abrams, 15 Ford. Urban L. J., at 942-947 (disapproving secondary liability under § 12); O’Hara, 31 UCLA L. Rev., at 979-1002 (arguing that any form of participant liability, whether primary or secondary, is inappropriate under § 12(2)). The substantial-factor test reflects a conviction that § 12 liability “must lie somewhere between the narrow view, which holds only the parties to the sale, and the too-liberal view which would hold all who remotely participated in the events leading up to the transaction.” Lennerth v. Mendenhall, 234 F. Supp. 59, 65 (ND Ohio 1964). That court elected to “borrow a phrase from the law of negligence” and to premise liability on proximate cause. It imposed § 12(1) liability on the issuer that transferred title and the issuer’s president, vice president, and another employee. The Fifth Circuit adopted the proximate cause rationale in Hill York Corp. v. American International Franchises, Inc., 448 F. 2d 680, 693 (1971) (holding that promoters of a nationwide franchising scheme were § 12 sellers), and two years later refined the doctrine to impose liability on defendants whose actions were a “ ‘substantial factor’ ” in causing a plaintiff’s purchases. See Lewis v. Walston & Co., 487 F. 2d 617, 622 (CA5 1973) (affirming § 12(1) judgment against a brokerage firm and" }, { "docid": "6517284", "title": "", "text": "Eleventh Circuits had held otherwise, using either a “substantial factor” test, a “proximate cause” test or a variation thereof to de fine the class of participants who, albeit not owners of the securities, could nevertheless be liable under section 12(2). Quincy Co-operative Bank v. A.G. Edwards & Sons, Inc., 655 F.Supp. 78, 83 (D.Mass.1986). See also Davis v. Avco Financial Serv., 739 F.2d 1057, 1063-67 (6th Cir.1984) (discussing the various approaches). Those circuits who did not require privity under section 12(2) varied on how far the ambit of that statute extended, even when employing the same test. This circuit’s most recent interpretation of section 12(2) dates back to 1985, before the Supreme Court issued Pinter. In Foster v. Jesup and Lamont Securities Co., Inc., 759 F.2d 838 (11th Cir.1985), this court stated that “[s]ection 12 will reach those ‘whose participation in the buy-sell transaction is a substantial factor in causing the transaction to take place.’ ” Id. at 844 (quoting Pharo, 621 F.2d at 667). Secondary participants who did not effectuate the sale could be liable if a plaintiff’s injury flowed directly and proximately from their actions, i.e. they were “key participants,” “active negotiators,” or “the motivating force” behind a sale of securities. Foster, 759 F.2d at 844 (citing Junker v. Crory, 650 F.2d 1349, 1360 (5th Cir.1981); Hill York Corp. v. American Int’l Franchises, Inc., 448 F.2d 680, 693 (5th Cir.1971)). In Foster, the defendant underwriter’s name was prominently displayed on the offering document the seller of securities gave to the plaintiff. The underwriter and the seller of securities had entered into an agency agreement whereby the underwriter promised to use its “best efforts” to sell interests in a limited partnership in exchange for a 10% commission; however, that agreement was subsequently rescinded. While the plaintiff bought his interest in the partnership from the president of the general partner in the limited partnership and the defendant underwriter sold no interests in the partnership to anyone, the evidence established that the plaintiff relied on the fact that the underwriter’s name was displayed on the offering document. The Foster court nevertheless" }, { "docid": "14292084", "title": "", "text": "the person purchasing such security from him.” 15 U.S.C.A. § 771(2) (West 1981). At first blush, Jesup & Lamont appears plainly beyond the reach of § 12(2). The firm did not sell anyone an interest in Texas Partners and had no direct contact with Foster. Moreover, Foster actually bought his interest from Minnick, who met with Foster and touted the security to persuade him to invest. Courts have generally recognized, however, that defendants who do not actually sell the security in question may nonetheless be liable under § 12. In delimiting the scope of § 12, authority controlling in this circuit has sought to determine whether a defendant’s role “constituted him a seller for purposes of that section.” Junker v. Crory, 650 F.2d 1349, 1360 (5th Cir. July 17, 1981). Liability of secondary participants has been held to depend on whether “the injury to the plaintiff flow[ed] directly and proximately from the [defendant’s] actions.” Hill York Corp. v. American International Franchises, Inc., 448 F.2d 680, 693 (5th Cir.1971) (quoting Lennerth v. Mendenhall, 234 F.Supp. 59, 65 (N.D.Ohio 1964)). Section 12 will reach those “whose participation in the buy-sell transaction is a substantial factor in causing the transaction to take place.” Pharo v. Smith, 621 F.2d 656, 667 (5th Cir.1980). In Hill York, § 12 liability attached to defendants who engineered a franchise sales scheme, but who did not execute the sales in question. Through the sales scheme, capital was attracted to corporations that purportedly would market restaurant franchises. Shares in the corporations were marketed by means of sales brochures that omitted to inform buyers that similar operations by the same defendants were targets of pending SEC investigations. 448 F.2d at 690. Even though the defendants had not sold to the plaintiffs, the court in Hill York considered them to have been “the motivating force” behind the sales scheme: They sought out the original incorporators of Florida Franchise and then trained them to solicit additional capital for the corporation. They provided the sales brochures designed to secure this additional capital. They rendered advice on every aspect of the corporate formation and" }, { "docid": "23101400", "title": "", "text": "Foster v. Jesup & Lamont Secs. Co., 759 F.2d 838, 844 (11th Cir.1985); Stokes v. Lokken, 644 F.2d 779, 785 (8th Cir.1981); Pharo v. Smith, 621 F.2d 656, 667 (5th Cir.1980). Still a different rule has been prescribed by the Second Circuit, recognizing section 12(2) liability for “nonselling collateral participants” who possess the requisite scien-ter. See Wilson v. Ruffa & Hanover, P.C., 844 F.2d 81, 85 (2d Cir.1988). In the analogous context of section 12(1) liability, the Supreme Court has recently resolved the conflict among the circuits in defining “seller.” In Pinter v. Dahl, — U.S.-, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988), the Court rejected the “substantial factor” test for assessing section 12(1) liability in connection with the illegal sale of unregistered securities. The Court maintained that [tjhere is no support in the statutory language or legislative history for expansion of § 12(1) primary liability beyond persons who pass title and persons who “offer,” including those who “solicit” offers. Indeed, § 12’s failure to impose express liability for mere participation in unlawful sales transactions suggests that Congress did not intend that the section impose liability on participants collateral to the offer or sale. Id. 108 S.Ct. at 2080. The Court, however, refused to narrowly limit the class of defendants potentially liable under section 12(1) merely to persons who pass title, id. at 2076, but instead interpreted the statute to encompass brokers and others who “successfully solicit[] the purchase, motivated at least in part by a desire to serve [their] own financial interests or those of the securities owner.” Id. at 2079. Although the Court noted that the “offers or sells” language governing section 12(1) also governs section 12(2) and that most courts and commentators define the defendant class similarly under both provisions, the case did not present — and the Court expressly declined to decide — the scope of a statutory seller for purposes of section 12(2). See id. at 2076 n. 20. The language in Pinter v. Dahl, coupled with prevailing federal case law in other circuits, seems to undermine the continuing viability of the strict privity concept" }, { "docid": "6517283", "title": "", "text": "Eleventh Circuit case law on section 12(1) status, and is discussed in detail below at the end of subsection one. 1. The Scope of Section 12(2) Prior to Pinter A brief summary of the evolution of section 12(2) as an anti-fraud measure in the arena of securities regulation is useful in analyzing the effect of Pinter on this circuit’s interpretation of the scope of that statute. In the early years following the passage of the 1933 Act, courts were reluctant to impose 12(2) liability beyond the immediate seller of securities. In furtherance of the remedial purposes of the Act, however, a number of courts slowly expanded the definition of “seller” so as to abolish any threshold requirement of contractual privity. Accordingly, prior to Pinter a split existed among circuits as to whether a section 12(2) plaintiff must establish privity between the plaintiff-purchaser and the defendant-seller in order for the defendant to be considered a “seller.” The Third and Seventh Circuits had held that section 12(2) required privity. The Second, Fourth, Fifth, Sixth, Eighth, Ninth and Eleventh Circuits had held otherwise, using either a “substantial factor” test, a “proximate cause” test or a variation thereof to de fine the class of participants who, albeit not owners of the securities, could nevertheless be liable under section 12(2). Quincy Co-operative Bank v. A.G. Edwards & Sons, Inc., 655 F.Supp. 78, 83 (D.Mass.1986). See also Davis v. Avco Financial Serv., 739 F.2d 1057, 1063-67 (6th Cir.1984) (discussing the various approaches). Those circuits who did not require privity under section 12(2) varied on how far the ambit of that statute extended, even when employing the same test. This circuit’s most recent interpretation of section 12(2) dates back to 1985, before the Supreme Court issued Pinter. In Foster v. Jesup and Lamont Securities Co., Inc., 759 F.2d 838 (11th Cir.1985), this court stated that “[s]ection 12 will reach those ‘whose participation in the buy-sell transaction is a substantial factor in causing the transaction to take place.’ ” Id. at 844 (quoting Pharo, 621 F.2d at 667). Secondary participants who did not effectuate the sale could be" }, { "docid": "23101399", "title": "", "text": "12(2) sellers include those persons who “proximately caused” a securities transaction. See Davis v. AVCO Financial Services, Inc., 739 F.2d 1057, 1065 (6th Cir.1984), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 381 (1985) (“But for the presence of the defendant ... in the negotiations preceding the sale, could the sale have been consummated?” (quoting Lennerth v. Mendenhall, 234 F.Supp. 59 (N.D.Ohio 1964))); Croy v. Campbell, 624 F.2d 709, 713 (5th Cir.1980). A different Fifth Circuit panel, as well as the Fourth, Eighth, Ninth and Eleventh Circuits, have embraced a somewhat more refined version— the “substantial factor” test, which imposes section 12(2) liability on those whose participation is a substantial factor in causing the securities sale to take place. See Jett v. Sunderman, 840 F.2d 1487, 1491 (9th Cir.1988) (defining section 12(2) seller as a participant whose “actions were both necessary to and a 'substantial factor’ in bringing about the sales transaction” (citing S.E.C. v. Murphy, 626 F.2d 633, 649-50 (9th Cir.1980))); Adalman v. Baker, Watts & Co., 807 F.2d 359 (4th Cir.1986); Foster v. Jesup & Lamont Secs. Co., 759 F.2d 838, 844 (11th Cir.1985); Stokes v. Lokken, 644 F.2d 779, 785 (8th Cir.1981); Pharo v. Smith, 621 F.2d 656, 667 (5th Cir.1980). Still a different rule has been prescribed by the Second Circuit, recognizing section 12(2) liability for “nonselling collateral participants” who possess the requisite scien-ter. See Wilson v. Ruffa & Hanover, P.C., 844 F.2d 81, 85 (2d Cir.1988). In the analogous context of section 12(1) liability, the Supreme Court has recently resolved the conflict among the circuits in defining “seller.” In Pinter v. Dahl, — U.S.-, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988), the Court rejected the “substantial factor” test for assessing section 12(1) liability in connection with the illegal sale of unregistered securities. The Court maintained that [tjhere is no support in the statutory language or legislative history for expansion of § 12(1) primary liability beyond persons who pass title and persons who “offer,” including those who “solicit” offers. Indeed, § 12’s failure to impose express liability for mere participation in unlawful sales transactions" }, { "docid": "7380713", "title": "", "text": "based on his purchase of 7,000 Oryx units from Robertson, which was later acquired by Moore. Plaintiffs contend, however, that the issuer and participating underwriters are subject to liability under section 12(2) as co-conspirators or aiders and abettors. The doctrine imposing secondary liability on co-conspirators and aiders may be traced to Katz v. Amos Treat & Co., 411 F.2d 1046, 1053-55 (2d Cir.1969), and In Re Caesars Palace Securities Litigation, 360 F.Supp. 366, 378-80 (S.D.N.Y.1973) (“persons who do no more than ... aid and abet ... are not necessarily ... excluded from the imposition of § 12(2) liability.”); see also Hill York Corp., v. American International Franchises Inc., 448 F.2d 680, 692-93 (5th Cir.1971) (employing “proximate cause” test rather than “strict privity” requirement). Under these decisions, liability may be imposed on “persons who are aware of and, to some lesser degree, participate in a violation of [section 12(2) ] and either enter into an agreement with or give assistance to the wrongdoers____” Id. at 383. Plaintiffs construe this language to encompass the activities of the issuer and underwriters. Plaintiffs have cited no cases, however, in which these theories have been applied to subject participating underwriters or an issuer whose securities were sold pursuant to a firm commitment underwriting to section 12 liability for sales effected by other participating underwriters. Katz v. David. W. Katz & Co., 1984 Fed.Sec.L. Rep. (CCH) H99,669 (S.D.N.Y.1984), conerned an attorney who allegedly participated directly in the sale. Judge Sand explicitly stated that a “plaintiff, at mimimum, must show some meaningful participation in an ‘offer or sale’ on the part of those charged with Section 12 liability.” Id. at 97,687. See also Stokes v. Lokken, 644 F.2d 779, 785 (8th Cir.1981) (defendant who was “two steps removed” from sale does not engage in “sufficient degree of participation” for § 12(2) liability); Pharo v. Smith, 621 F.2d 656, 667 (5th Cir.1980) (defendant must be “substantial factor” rather than someone who “mere[ly] participates]”); Lawler v. Gilliam, 569 F.2d 1283, 1287-88 (4th Cir.1978) (same); Lewis v. Walston & Co., 487 F.2d 617, 622 (5th Cir.1973) (finding defendant liable because" }, { "docid": "23101398", "title": "", "text": "not only torture the plain meaning of the statutory language but would frustrate the statutory scheme_”). Notwithstanding contentions that the language in Sanders is non-binding dictum, the district courts of this circuit have quite consistently construed Sanders as persuasive authority for “requirpng] that the defendant be one who could have passed title to the security in question.” Steinberg v. Illinois Co., 659 F.Supp. 58, 60 (N.D.Ill.1987) (collecting cases); Beck v. Cantor Fitzgerald & Co., 621 F.Supp. 1547, 1560-62 (N.D.Ill.1985); Kennedy v. Nicastro, 503 F.Supp. 1116, 1118 (N.D.Ill.1980). The court below apparently applied a strict privity test finding that the plaintiffs had failed to establish that the Bank was an “immediate seller” or that a “purchaser-seller relationship” existed between the parties. See Schlifke I, mem. op. at 5. The language of Sanders, although dictum, is this court’s only clear interpretation of who may be a “seller” under section 12(2). Other circuits, however, have liberalized the privity requirement and have variously crafted tests for imposing liability. For example, the Fifth and Sixth Circuits have held that section 12(2) sellers include those persons who “proximately caused” a securities transaction. See Davis v. AVCO Financial Services, Inc., 739 F.2d 1057, 1065 (6th Cir.1984), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 381 (1985) (“But for the presence of the defendant ... in the negotiations preceding the sale, could the sale have been consummated?” (quoting Lennerth v. Mendenhall, 234 F.Supp. 59 (N.D.Ohio 1964))); Croy v. Campbell, 624 F.2d 709, 713 (5th Cir.1980). A different Fifth Circuit panel, as well as the Fourth, Eighth, Ninth and Eleventh Circuits, have embraced a somewhat more refined version— the “substantial factor” test, which imposes section 12(2) liability on those whose participation is a substantial factor in causing the securities sale to take place. See Jett v. Sunderman, 840 F.2d 1487, 1491 (9th Cir.1988) (defining section 12(2) seller as a participant whose “actions were both necessary to and a 'substantial factor’ in bringing about the sales transaction” (citing S.E.C. v. Murphy, 626 F.2d 633, 649-50 (9th Cir.1980))); Adalman v. Baker, Watts & Co., 807 F.2d 359 (4th Cir.1986);" } ]

[ { "docid": "6938006", "title": "", "text": "award of attorneys’ fees to the landlords’ counsel without regard to the terms of the lease. In re Westworld Community Healthcare, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989). The respective records in all of the other cases we found considering attorney fees under § 365(b)(1) included lease provisions allowing attorneys’ fees in cir- eumstances established to be present, and the courts limited recovery to the terms of the lease provisions. See In re Diamond Head Emporium, Inc., 69 B.R. 487 (Bankr.D.Haw.1987); In re Westview 74th Street Drug Corp., 59 B.R. 747 (Bankr.S.D.N.Y.1986); In re Ribs of Greenwich Village, 57 B.R. 319 (Bankr.S.D.N.Y.1986); In re Foreign Crating, Inc., 55 B.R. 53 (Bankr.E.D.N.Y.1985); In re J.W. Mays, Inc., 30 B.R. 769 (Bankr.S.D.N.Y.1983). While Foreign Crating seems to suggest that § 365(b)(1)(B) alone requires attorney fees to be reimbursed, the holding actually was “pursuant to a lease provision that provides for attorney’s fees.” 55 B.R. at 54. The results in these latter cases are in keeping with the “American rule” regarding a litigant’s duty to pay even a successful opponent’s attorneys’ fees: each party bears its own costs of litigation, absent a specific contractual or statutory provision to the contrary. See United Nesco, supra, 68 B.R. at 974. Without evidence of a particular lease provision reciting precisely in what circumstances a landlord’s attorneys’ fees are recoverable, it is impossible to ascertain whether a circumstance justifying collection of such fees is in fact present or whether such a clause is unenforceable as an adhesion contract. See Garnett, supra, 99 B.R. at 296-97; and United Nesco, 68 B.R. at 973-74. We join those courts that hold that § 365(b)(1)(B) does not create a statutory right to recover attorney fees, and the record before us (consisting entirely of the Stipulation, per our Order of June 7, 1989) does not include any provisions in the leases justifying such charges. Therefore, we are unable to require the Trustee to pay the attorneys’ fees of the Landlords as a condition of assuming the lease. Even assuming arguendo that such provisions do exist, but were omitted from the record on the assumption" } ]

[ { "docid": "9588285", "title": "", "text": "the successful party for the reasonable expense of attorney’s fees and disbursements incurred therein by the successful party. Under this provision, McDonald’s argues that it is entitled to the payment of attorney fees because it hired outside counsel to enforce its rights under the Ground Lease. McDonald’s presented two witnesses, Frank Kudia, in house legal counsel, and Carol Wingles, in house accountant, to support its contention that it acted reasonably. Mr. Kudia explained that McDonald’s had to ensure that the debtor was current on its rent, that the debtor had insurance coverage in effect with McDonald’s named as a loss payee, and that the debtor had reimbursed McDonald’s for taxes paid as required by the lease. Further, outside counsel was necessary to negotiate additional protections cash collateral order. The debtor contends that while the hours may have been expended by McDonald’s counsel, the debtor has no liability for attorney fees under the lease. First, as a matter of law, the court finds that the contract’s attorney fee provision does not permit McDonald’s to recover attorney fees from the debtor. Attorneys’ fees incurred in attempting to collect sums due from debtors following default may be recovered as pecuniary loss under § 365(b)(1)(B) if such monies were expended as the result of a default under the contract or lease between the parties and are recoverable under the contract and applicable state law. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991). Entitlement to attorneys’ fees, however, is dependent on the terms of the lease and on state law; § 365(b)(1)(B) does not create an independent right to an award of attorneys’ fees. See, e.g., In re Ryan’s Subs, Inc., 165 B.R. 465, 467 (Bankr.W.D.Mo.1994); In re Child World, Inc., 161 B.R. 349, 353 (Bankr.S.D.N.Y.1993); Inre F & N Acquisition Corp., 152 B.R. at 308; In re Hillsborough Holdings Corp., 126 B.R. at 898; In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Pa.1989); In re Westview 74th Street Drug Corp., 59 B.R. 747, 756-57 (Bankr.S.D.N.Y.1986); In re" }, { "docid": "4736761", "title": "", "text": "powers of a trustee. 11 U.S.C. § 1107(a). The debtors-in-possession (“debtors”) have elected to assume both the franchise agreement and the two subleases, and have cured the defaults. See 11 U.S.C. § 365(b)(1)(A). However, debtors also must compensate Subway for any actual pecuniary loss resulting from the default. 11 U.S.C. § 365(b)(1)(B). Attorney’s fees incurred in attempting to collect sums due from debtors following default are defined as a pecuniary loss. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991); In re Westworld Community Healthcare, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989). Subway claims that it has incurred $12,292.78 in attorney’s fees and expenses since the filing of this bankruptcy, and that such fees resulted from debtors’ default. Therefore, Subway asks that debtors pay that amount to compensate Subway for its actual pecuniary loss. This case raises two issues. First, does section 365(b)(1)(B) create an independent right to attorney’s fees and expenses even if the underlying agreements would not so obligate the debtor. And second, if section 365(b)(1)(B) does not create such a right, what remedy is available to Subway under the franchise agreement and subleases. Subway cites one case which holds that section 365(b)(1)(B) creates an independent right to attorney’s fees incurred following a default. In re Westworld Community Healthcare, Inc., 95 B.R. 730, 733 (Bankr.C.D.Cal.1989). The court in Westworld found that section 365(b)(1) was designed to limit the trustee’s power to assume executory contracts and unexpired leases. Id. Against that one holding, the vast majority of cases have found that section 365(b)(1)(B) does not provide an independent right of recovery without regard to the terms of the lease or contract. See, e.g., In re Child World, Inc., 161 B.R. 349, 353 (Bankr.S.D.N.Y.1993); In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991); In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Penn.1989); In re Westview 74th Street Drug Corp., 59 B.R. 747, 756-57 (Bankr.S.D.N.Y.1986); In re Tech Hifi, Inc., 49 B.R. 876, 881 (Bankr.D.Mass.1985); Andrew" }, { "docid": "4736762", "title": "", "text": "second, if section 365(b)(1)(B) does not create such a right, what remedy is available to Subway under the franchise agreement and subleases. Subway cites one case which holds that section 365(b)(1)(B) creates an independent right to attorney’s fees incurred following a default. In re Westworld Community Healthcare, Inc., 95 B.R. 730, 733 (Bankr.C.D.Cal.1989). The court in Westworld found that section 365(b)(1) was designed to limit the trustee’s power to assume executory contracts and unexpired leases. Id. Against that one holding, the vast majority of cases have found that section 365(b)(1)(B) does not provide an independent right of recovery without regard to the terms of the lease or contract. See, e.g., In re Child World, Inc., 161 B.R. 349, 353 (Bankr.S.D.N.Y.1993); In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991); In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Penn.1989); In re Westview 74th Street Drug Corp., 59 B.R. 747, 756-57 (Bankr.S.D.N.Y.1986); In re Tech Hifi, Inc., 49 B.R. 876, 881 (Bankr.D.Mass.1985); Andrew v. KMR Corp. (In re Bullock), 17 B.R. 438, 439 (Bankr. 9th Cir.1982). I agree with the majority that section 365(b)(1)(B) does not provide an independent right of recovery of attorney’s fees and expenses. Section 365 does not, and was not intended to, give creditors greater rights than they would have under the contract or lease which gives rise to the debt. See F & N Acquisition at 307 (citing In re Bon Ton Restaurant & Pastry Shop, Inc., 53 B.R. 789, 804 (Bankr.N.D.Ill.1985)). The actual pecuniary loss suffered by a creditor is that amount which could be recovered under state law outside of bankruptcy. Here, that amount is established by the agreement of the parties. Thus, I reach the issue of what right of recovery is provided by the subleases and contracts in this case. I will begin with the franchise agreement which provides: (d) In the event that the Franchisee withholds any monies due under this Agreement ... the Company shall be reimbursed by the Franchisee for all reasonable costs that it incurs" }, { "docid": "10221679", "title": "", "text": "it all on the anchor tenant. The debtor’s predecessor apparently had sufficient bargaining power to obtain this clause. It is not ambiguous, and it is not inconsistent with any other part of the lease. Hence there is no reason to go beyond the document to ascertain the intent of the parties. SECTION 365(b)(1)(B) AS AN INDEPENDENT COURSE OF DAMAGES Titanic continues to maintain that § 365(b)(1)(B) provides an independent basis for damages beyond those which are authorized by the lease. In support of its position, Titanic cites two cases in which the courts have awarded attorney’s fees as part of a cure or in compensation for actual pecuniary loss under § 365(b)(1). They are In re Westworld Community Healthcare, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989); In re Foreign Crating, Inc., 55 B.R. 53 (Bankr.E.D.N.Y.1985). In addition, Titanic cites In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991) for the proposition that it is entitled to interest as an element of pecuniary loss. With respect to attorney’s fees, In re Westworld Community Healthcare, Inc., supra, is the only published case that the Court has found expressly holding that § 365(b)(1) provides a right of recovery without regard to the terms of the lease. In every other case in which attorney’s fees have been awarded, the fees have been authorized by the lease agreement. See In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991); In re Joshua Slocum, Ltd., 103 B.R. 601 (Bankr. E.D.Pa.1989); In re Diamond Head Emporium, Inc., 69 B.R. 487 (Bankr.D.Haw. 1987); In re Westview 74th Street Drug Corp., 59 B.R. 747 (Bankr.S.D.N.Y.1986); In re J.W. Mays, Inc., 30 B.R. 769 (Bankr. S.D.N.Y.1983); In re Bullock, 17 B.R. 438 (9th Cir.B.A.P.1982). The F & N/Titanic lease specifically requires that each party bear its own attorneys’ fees in “enforcing the covenants and agreements of this Lease.” Certainly under these circumstances there is no reason for the Court to depart from the majority view by awarding attorney’s fees as an element of pecuniary loss under § 365(b)(1)(B). This conclusion is buttressed by the Ninth Circuit’s strong adherence to the American rule, as" }, { "docid": "12616613", "title": "", "text": "§ 365(b)(1)(B) does not create an independent right to an award of attorneys’ fees. See, e.g., In re Ryan’s Subs, Inc., 165 B.R. 465, 467 (Bankr.W.D.Mo.1994); In re Child World, Inc., 161 B.R. 349, 353 (Bankr.S.D.N.Y.1993); In re F &N Acquisition Corp., 152 B.R. at 308; In re Hillsborough Holdings Corp., 126 B.R. at 898; In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Penn.1989) ; In re Westview 74th Street Drug Corp., 59 B.R. 747, 756-57 (Bankr.S.D.N.Y.1986); In re Tech Hifi, Inc., 49 B.R. 876, 881 (Bankr.D.Mass.1985). 2. North Carolina law governs the Three Sisters/Shangra-La lease, and therefore we must look to North Carolina law to evaluate Three Sisters’s argument that it is entitled to postpetition attorneys’ fees under state law and, accordingly, also under § 365(b)(1)(B). “‘The jurisprudence of North Carolina traditionally has frowned upon contractual obligations for attorney’s fees as part of the costs of an action.’” Stillwell Enters., Inc. v. Interstate Equip. Co., 300 N.C. 286, 266 S.E.2d 812, 814 (N.C.1980) (quoting Supply, Inc. v. Allen, 30 N.C.App. 272, 227 S.E.2d 120, 123 (N.C.App.1976)) (alteration omitted). “Thus the general rule [in North Carolina is] that a successful litigant may not recover attorneys’ fees, whether as costs or as an item of damages, unless such a recovery is expressly authorized by statute.” Id. “Even in the face of a carefully drafted contractual provision” authorizing payment of attorneys’ fees, the North Carolina courts “have consistently refused to sustain such an award absent statutory authority therefor.” Id. 266 S.E.2d at 814-15. Section 6-21.2 of the North Carolina General Statutes provides the statutory authority for recovering attorneys’ fees when permitted in a lease. See R.C. Assocs. v. Regency Ventures, Inc., 111 N.C.App. 367, 432 S.E.2d 394, 397 (N.C.App.1993) (noting that leases are “other evidence of indebtedness” under N.C. Gen.Stat. § 6-21.2). The statute caps an award of attorneys’ fees at fifteen percent of the outstanding balance owing on the instrument of indebtedness, see N.C. Gen.Stat. § 6- 21.2(1) & (2), and further requires that parties wishing to enforce the provisions of their attorneys’ fee agreements give adequate notice, see N.C." }, { "docid": "9588301", "title": "", "text": "greater rights than they would have had under the contract or lease which gave rise to the debt.” In re Ryan's Subs, Inc., 165 B.R. 465, 468 (Bankr.W.D.Mo.1994); see also In re Child World, Inc., 161 B.R. 349, 353-54 (Bankr.S.D.N.Y.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991) (rejecting In re Westworld); In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Pa.1989) (rejecting In re Westworld Community Healthcare, Inc. and holding subsection (B) does not create an independent right to attorney's fees). These cases rely on the \"American Rule,” that unless otherwise specified in a contract or statute, parties to litigation must bear their own attorney's fees. See Johnson v. Righetti (In re Johnson), 756 F.2d 738, 741 (9th Cir.1985) cert. denied, 474 U.S. 828, 106 S.Ct. 88, 88 L.Ed.2d 72 (1985) (applying American rule to § 362). Further, Congress specifically grants the right to attorney's fees in other provisions of the Code. See 11 U.S.C. § 363(h) (allowing recovery of \"actual damages, including costs and attorney’s fees”); and 11 U.S.C. § 506(b) (allowing fees provided for under a security agreement). Because Congress has specifically provided for fees in some circumstances but not in others, the courts should not imply attorney’s fees where they are not specifically provided for by contract or statute. The Ninth Circuit Bankruptcy Appellate Panel has also rejected In re Westworld upon which the BAB Enterprises decision relied, holding that § 365(b)(1)(B) does not create an independent right to attorney fees, and that not only was Westworld wrongly decided, but that the \"American Rule” prohibits an independent award of attorney fees under subsection (B). In re Westside Print Works, Inc., 180 B.R. 557 (9th Cir. BAP 1995). Accordingly, this court agrees with the majority of courts considering the issue, that section 365(b)(1)(B) does not provide an independent basis for recovery of attorney fees. . Also pending was McDonald's objection to the debtor's motion to use cash collateral. McDonald’s argued that a specific carve-out should be included that allowed for payment of rent, escrow of taxes, and CAM charges. The debtor ultimately agreed to allow" }, { "docid": "12616611", "title": "", "text": "of a Chapter 11 reorganization, because rejection can release the debtor’s estate from burdensome obligations that can impede a successful reorganization.” NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984). Likewise, the power to assume and/or assign the lease gives the trustee significant flexibility in managing the estate. A leasehold interest often proves to be the most valuable asset in a small business bankruptcy. When the debtor assumes its unexpired lease, however, it assumes it cum onere — the debtor must accept obligations of the executory contract along with the benefits. See Adventure Resources, Inc. v. Holland, 137 F.3d 786, 798 (4th Cir.), cert. denied, — U.S. -, 119 S.Ct. 404, 142 L.Ed.2d 328 (1998). Because the Bankruptcy Code also recognizes the interest of the landlord in realizing the benefit of the bargain struck with the tenant, albeit under brighter financial circumstances, in order to assume the lease, the trustee must cure any remaining defaults under the contract or lease. See id.; 11 U.S.C.A. § 365(b)(1)(A) (“If there has been a default ... the trustee may not assume such contract or lease unless ... the trustee ... cures, or provides adequate assurance that the trustee will promptly cure, such default.”). Further, prior to assumption of the lease, the trustee must “compensate[ ], or provide[] adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease, for any actual pecuniary loss to such party resulting from such default.” 11 U.S.C.A. § 365(b)(1)(B) (emphasis added). Attorneys’ fees incurred in attempting to collect sums due from debtors following default may be recovered as pecuniary loss under § 365(b)(1)(B) if such monies were expended as the result of a default under the contract or lease between the parties and are recoverable under the contract and applicable state law. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991). Entitlement to attorneys’ fees, however, is dependent on the terms of the lease and on state law;" }, { "docid": "10221680", "title": "", "text": "only published case that the Court has found expressly holding that § 365(b)(1) provides a right of recovery without regard to the terms of the lease. In every other case in which attorney’s fees have been awarded, the fees have been authorized by the lease agreement. See In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991); In re Joshua Slocum, Ltd., 103 B.R. 601 (Bankr. E.D.Pa.1989); In re Diamond Head Emporium, Inc., 69 B.R. 487 (Bankr.D.Haw. 1987); In re Westview 74th Street Drug Corp., 59 B.R. 747 (Bankr.S.D.N.Y.1986); In re J.W. Mays, Inc., 30 B.R. 769 (Bankr. S.D.N.Y.1983); In re Bullock, 17 B.R. 438 (9th Cir.B.A.P.1982). The F & N/Titanic lease specifically requires that each party bear its own attorneys’ fees in “enforcing the covenants and agreements of this Lease.” Certainly under these circumstances there is no reason for the Court to depart from the majority view by awarding attorney’s fees as an element of pecuniary loss under § 365(b)(1)(B). This conclusion is buttressed by the Ninth Circuit’s strong adherence to the American rule, as expressed recently in Layman v. Combs, 981 F.2d 1093 (9th Cir.1992). In addition to attorneys’ fees, Titanic requests interest on monetary defaults, citing In re Hillsborough Holdings Corp., supra. While the Hillsborough Holdings court did not authorize attorneys’ fees, it allowed interest at the legal rate provided by state law, stating simply that interest is “an actual pecuniary loss flowing directly from the admitted default of the Debtor.” Likewise in In re Mays, Inc., supra, the court declined to award attorneys’ fees, but it allowed interest because state law required tenants to pay interest on rental installments from the time they are due. The lease under consideration does not provide for interest on monetary defaults. Article XXIX provides that “[n]o action shall be maintained against Tenant by Landlord ... on account of this Lease except (i) for the recovery of the specific sums required to be paid by Tenant by the express terms of this Lease ...” (emphasis added). The Court is not aware of any provision of state law that requires interest to be" }, { "docid": "9588300", "title": "", "text": "a matter of law, no attorney fees should be awarded McDonald’s, and alternatively, that the proof at trial established no basis in law or fact for the award of attorney fees. The court therefore overrules McDonald’s supplemental objection to the debtor’s motion to assume the lease for Front Runner Market # 1116, and denies all attorney fee requests. It is, THEREFORE, so ordered. . McDonald's cites In re BAB Enterprises, Inc., 100 B.R. 982 (Bankr.W.D.Tenn.1989) for the proposition that section 365(b)(1)(B) does provide a lessor with an independent right to recover attorney fees. In that case, the debt- or, as part of its motion to assume the lease, agreed to pay the landlord $1,000 in attorney fees. The court relied on In re Westworld Community Healthcare, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989) finding § 365(b)(1)(B) did permit the debtor to pay $1,000 to the lessor as long as such amount was reasonable. The majority of courts have rejected the Westworld Community decision and held that, \"section 365 does not, and was not intended to, give creditors greater rights than they would have had under the contract or lease which gave rise to the debt.” In re Ryan's Subs, Inc., 165 B.R. 465, 468 (Bankr.W.D.Mo.1994); see also In re Child World, Inc., 161 B.R. 349, 353-54 (Bankr.S.D.N.Y.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991) (rejecting In re Westworld); In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Pa.1989) (rejecting In re Westworld Community Healthcare, Inc. and holding subsection (B) does not create an independent right to attorney's fees). These cases rely on the \"American Rule,” that unless otherwise specified in a contract or statute, parties to litigation must bear their own attorney's fees. See Johnson v. Righetti (In re Johnson), 756 F.2d 738, 741 (9th Cir.1985) cert. denied, 474 U.S. 828, 106 S.Ct. 88, 88 L.Ed.2d 72 (1985) (applying American rule to § 362). Further, Congress specifically grants the right to attorney's fees in other provisions of the Code. See 11 U.S.C. § 363(h) (allowing recovery of \"actual damages, including costs and attorney’s fees”); and 11 U.S.C. § 506(b)" }, { "docid": "12616612", "title": "", "text": "has been a default ... the trustee may not assume such contract or lease unless ... the trustee ... cures, or provides adequate assurance that the trustee will promptly cure, such default.”). Further, prior to assumption of the lease, the trustee must “compensate[ ], or provide[] adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease, for any actual pecuniary loss to such party resulting from such default.” 11 U.S.C.A. § 365(b)(1)(B) (emphasis added). Attorneys’ fees incurred in attempting to collect sums due from debtors following default may be recovered as pecuniary loss under § 365(b)(1)(B) if such monies were expended as the result of a default under the contract or lease between the parties and are recoverable under the contract and applicable state law. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991). Entitlement to attorneys’ fees, however, is dependent on the terms of the lease and on state law; § 365(b)(1)(B) does not create an independent right to an award of attorneys’ fees. See, e.g., In re Ryan’s Subs, Inc., 165 B.R. 465, 467 (Bankr.W.D.Mo.1994); In re Child World, Inc., 161 B.R. 349, 353 (Bankr.S.D.N.Y.1993); In re F &N Acquisition Corp., 152 B.R. at 308; In re Hillsborough Holdings Corp., 126 B.R. at 898; In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Penn.1989) ; In re Westview 74th Street Drug Corp., 59 B.R. 747, 756-57 (Bankr.S.D.N.Y.1986); In re Tech Hifi, Inc., 49 B.R. 876, 881 (Bankr.D.Mass.1985). 2. North Carolina law governs the Three Sisters/Shangra-La lease, and therefore we must look to North Carolina law to evaluate Three Sisters’s argument that it is entitled to postpetition attorneys’ fees under state law and, accordingly, also under § 365(b)(1)(B). “‘The jurisprudence of North Carolina traditionally has frowned upon contractual obligations for attorney’s fees as part of the costs of an action.’” Stillwell Enters., Inc. v. Interstate Equip. Co., 300 N.C. 286, 266 S.E.2d 812, 814 (N.C.1980) (quoting Supply, Inc. v. Allen, 30 N.C.App. 272, 227 S.E.2d" }, { "docid": "4736760", "title": "", "text": "the arrearages due Subway. That Stipulated Order left open the issues of the allowability and reasonableness of attorney’s fees claimed by Subway, All arrearages, other than the disputed attorney’s fees, have now been paid by debtors, DISCUSSION As a rule, creditors are not entitled to attorney’s fees in bankruptcy unless a specific provision of the Bankruptcy Code (the “Code”) so allows. See, e.g., 11 U.S.C. §§ 503(b), 506(b). However, section 365(b)(1)(B) of the Code provides: (b)(1) If there has been a default in an executory contract or unexpired lease of the debtor, the trustee may not assume such contract or lease unless, at the time of assumption of such contract or lease, the trustee— (B) compensates, or provides adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease for any actual pecuniary loss to such party resulting from such default; and 11 U.S.C. § 365(b)(1)(B). In a Chapter 11 case, absent any limitations or conditions that the Court imposes, a debtor-in-possession has all the rights and powers of a trustee. 11 U.S.C. § 1107(a). The debtors-in-possession (“debtors”) have elected to assume both the franchise agreement and the two subleases, and have cured the defaults. See 11 U.S.C. § 365(b)(1)(A). However, debtors also must compensate Subway for any actual pecuniary loss resulting from the default. 11 U.S.C. § 365(b)(1)(B). Attorney’s fees incurred in attempting to collect sums due from debtors following default are defined as a pecuniary loss. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991); In re Westworld Community Healthcare, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989). Subway claims that it has incurred $12,292.78 in attorney’s fees and expenses since the filing of this bankruptcy, and that such fees resulted from debtors’ default. Therefore, Subway asks that debtors pay that amount to compensate Subway for its actual pecuniary loss. This case raises two issues. First, does section 365(b)(1)(B) create an independent right to attorney’s fees and expenses even if the underlying agreements would not so obligate the debtor. And" }, { "docid": "12616615", "title": "", "text": "Gen.Stat. § 6-21.2(5). In sum, for Three Sisters to recover its postpetition attorneys’ fees through the operation of § 365(b)(1)(B) of the Bankruptcy Code, which incorporates North Carolina law, the lease between Three Sisters and Shangra-La must have a clear contractual provision allocating to Three Sisters the right to collect attorneys’ fees, that provision must be lawful under an express grant of North Carolina statutory authority, and Three Sisters must meet the requirements of the statute to collect its fees. 3. Applying this analysis to Three Sisters’s claim that it was improperly denied postpetition attorneys’ fees, we conclude that remand to the bankruptcy court for further consideration of factual matters is necessary. As to preliminary matters, the lease contains a clear attorneys’ fees provision in paragraph 22.4 of the lease, and, as we just discussed, such fees are recoverable under North Carolina law. Further, the Bankruptcy Code recognizes that a landlord must be compensated for actual pecuniary losses resulting from defaults that occurred under the lease during the course of the debtor’s insolvency. See 11 U.S.C.A. § 365(b)(1)(B). Attorneys’ fees qualify as actual pecuniary losses when state law would recognize them as such. See, e.g., In re Ryan’s Subs, Inc., 165 B.R. 465, 467 (Bankr.W.D. Mo. 1994). The lease in this case permits recovery of fees where the lessor employs an attorney “to collect any sums due under the lease or enforce any obligation of LESSEE hereunder.” Accordingly, the focus of the bankruptcy court on remand as to any disputed item of fees should be on whether the attorney’s action was taken primarily to collect sums due under the lease or to enforce an obligation of the lessee. If so, and if the requested fee is otherwise reasonable, the fact that issues peculiar to federal bankruptcy law were involved will not preclude an award of fees. Accordingly, the focus of the bankruptcy court on remand as to any disputed item of fees should be on whether the attorney’s action was taken primarily to collect sums due under the lease or to enforce an obligation of the lessee and whether state" }, { "docid": "9588286", "title": "", "text": "fees from the debtor. Attorneys’ fees incurred in attempting to collect sums due from debtors following default may be recovered as pecuniary loss under § 365(b)(1)(B) if such monies were expended as the result of a default under the contract or lease between the parties and are recoverable under the contract and applicable state law. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991). Entitlement to attorneys’ fees, however, is dependent on the terms of the lease and on state law; § 365(b)(1)(B) does not create an independent right to an award of attorneys’ fees. See, e.g., In re Ryan’s Subs, Inc., 165 B.R. 465, 467 (Bankr.W.D.Mo.1994); In re Child World, Inc., 161 B.R. 349, 353 (Bankr.S.D.N.Y.1993); Inre F & N Acquisition Corp., 152 B.R. at 308; In re Hillsborough Holdings Corp., 126 B.R. at 898; In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Pa.1989); In re Westview 74th Street Drug Corp., 59 B.R. 747, 756-57 (Bankr.S.D.N.Y.1986); In re Tech Hifi, Inc., 49 B.R. 876, 881 (Bankr.D.Mass.1985). While McDonald’s cited some case law allowing landlords to recover attorney fees in connection with enforcement of the covenants of the leases at issue, the leases in those cases specifically provided for such recovery. In this case, the lease allows recovery of attorney fees only in certain, specific instances. The cardinal rule for interpretation of contracts is to ascertain the intention of the parties from the contract as a whole and to give effect to that intention consistent with legal principles. Winfree v. Educators Credit Union, 900 S.W.2d 285, 289 (Tenn.Ct.App.1995); Rainey v. Stansell, 836 S.W.2d 117, 118 (Tenn.Ct.App.1992). The court, in arriving at the intention of the parties to a contract, does not attempt to ascertain the parties’ state of mind at the time the contract was executed, but rather their intentions as actually embodied and expressed in the contract as written. Id. In construing contracts, the words expressing the parties’ intention should be given their usual, natural, and ordinary meaning. Taylor v. White Stores, Inc.," }, { "docid": "12616616", "title": "", "text": "U.S.C.A. § 365(b)(1)(B). Attorneys’ fees qualify as actual pecuniary losses when state law would recognize them as such. See, e.g., In re Ryan’s Subs, Inc., 165 B.R. 465, 467 (Bankr.W.D. Mo. 1994). The lease in this case permits recovery of fees where the lessor employs an attorney “to collect any sums due under the lease or enforce any obligation of LESSEE hereunder.” Accordingly, the focus of the bankruptcy court on remand as to any disputed item of fees should be on whether the attorney’s action was taken primarily to collect sums due under the lease or to enforce an obligation of the lessee. If so, and if the requested fee is otherwise reasonable, the fact that issues peculiar to federal bankruptcy law were involved will not preclude an award of fees. Accordingly, the focus of the bankruptcy court on remand as to any disputed item of fees should be on whether the attorney’s action was taken primarily to collect sums due under the lease or to enforce an obligation of the lessee and whether state law would allow recovery for such actions. From our standpoint, reviewing the limited record before us, it is hard to decipher what defaults occurred under the lease and what steps Three Sisters took to cure those defaults. It is also difficult for us to determine whether Three Sisters’s postpetition involvement in Shangra-La’s bankruptcy proceeding had any relationship to defaults under the lease or were undertaken for another purpose. It is equally troublesome for us to determine whether the fees sought by Three Sisters’s attorneys are reasonable. Interpreting the contract and the course of events pre- and postpetition raises myriad factual issues that the lower court must resolve in the first instance. 4. The Trustee and the Bankruptcy Administrator for the Eastern District of North Carolina argue, however, that there is no need for us to remand this matter, because a recovery of attorneys’ fees is foreclosed by operation of North Carolina law. They argue that attorneys’ fees are recoverable under N.C. Gen.Stat. § 6-21.2(5) only if the party seeking the fees gives notice, and the" }, { "docid": "15479549", "title": "", "text": "disputes Service Merchandise’s claim for fees and expenses incurred due to “Debtor’s filing of a Chapter 11 petition [which constituted] a default [under the Lease]” and for the “costs of preparing for and attending the hearing on this [claim] objection.” Consumer Merchandise’s Response at 2-3. Although attorneys’ fees are not independently recoverable under the Bankruptcy Code, section 365(b)(1)(B) allows for such recovery if based upon the existence of a separate agreement between the parties. In re Best Products Co., 148 B.R. 413, 414 (Bankr.S.D.N.Y.1992); In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991); In re Westview 74th Street Drug Corp., 59 B.R. 747 (Bankr.S.D.N.Y.1986). But see In re Westworld Community Health Care, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989); In re Foreign Crating, Inc., 55 B.R. 53 (Bankr.E.D.N.Y.1985). Paragraph 14.1 of the Lease provided for payment of legal fees as follows: Tenant shall protect [and] indemnify ... Landlord from ... costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) imposed upon or incurred by ... Landlord ... by reason of ... any failure on the part of the Ten ant ... to perform or comply with any of the terms of this Lease.... Ex. 1 at 21. Therefore, if Child World breached any of the covenants contained in the Lease, Service Merchandise is entitled to attorneys’ fees incurred in the enforcement of such covenants. Service Merchandise claims that Child World breached two specific covenants of the Lease by; (i) failing to make timely payments due under the Lease; and by (ii) filing a Chapter 11 petition with this Court. While the first ground for breach put forth by Service Merchandise is not directly admitted to by Child World, it does concede that any reasonable attorneys’ fees incurred by Service Merchandise in enforcing the timely payment of rental, tax and common area maintenance charges under the Lease during the period from the petition date to September 21, 1992 are recoverable as an administrative expense. Child World’s Reply Brief at 7. The second ground for breach, however, is disputed by Child World as being an ipso facto clause and thus void under" }, { "docid": "15479548", "title": "", "text": "order (the “Order”) allowing for the assumption and assignment of the Lease by Child World to Musicland Group, Inc. under 11 U.S.C. §§ 365 and 363. The Order further provided that Child World’s liability under the Lease would end at midnight on the day prior to the closing of the assignment, namely midnight, September 21, 1993. On April 16, 1993, Service Merchandise filed a claim for post-petition attorneys’ fees and expenses arising from Child World’s purported breach of certain obligations under, the Lease in the amount of $13,573.64. On August 24, 1993, Child World objected to the amount of Service Merchandise’s claim to the extent that such claim reflected attorneys’ fees other than those “incurred in enforcing the rental, tax and common area maintenance provisions of the Lease incurred from the [pjetition [djate through September 21, 1992.” Child World’s Reply Brief at 7. Child World concedes that attorneys’ fees are due and owing for enforcement of the Lease provisions during the underlying period from the petition date to September 21, 1992. Id. However, Child World disputes Service Merchandise’s claim for fees and expenses incurred due to “Debtor’s filing of a Chapter 11 petition [which constituted] a default [under the Lease]” and for the “costs of preparing for and attending the hearing on this [claim] objection.” Consumer Merchandise’s Response at 2-3. Although attorneys’ fees are not independently recoverable under the Bankruptcy Code, section 365(b)(1)(B) allows for such recovery if based upon the existence of a separate agreement between the parties. In re Best Products Co., 148 B.R. 413, 414 (Bankr.S.D.N.Y.1992); In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991); In re Westview 74th Street Drug Corp., 59 B.R. 747 (Bankr.S.D.N.Y.1986). But see In re Westworld Community Health Care, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989); In re Foreign Crating, Inc., 55 B.R. 53 (Bankr.E.D.N.Y.1985). Paragraph 14.1 of the Lease provided for payment of legal fees as follows: Tenant shall protect [and] indemnify ... Landlord from ... costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) imposed upon or incurred by ... Landlord ... by reason of ... any failure on the" }, { "docid": "17802299", "title": "", "text": "§ 503(b)(4) because of the substantial contribution it made to the case. The trustee and the Bankruptcy Administrator concede that Three Sisters is entitled to some attorneys’ fees and expenses related to Shangra-La’s lease defaults, but maintain that Three Sisters should not recover any fees or expenses for legal services and expenses related to representation of its interests in the bankruptcy case. 11 U.S.C. § 365(b)(1)(B) 11 U.S.C. § 365(b)(1)(B) states that (b)(1) If there has been a default in an executory contract or unexpired lease of the debtor, the trustee may not assume such contract or lease unless, at the time of assumption of such contract or lease, the trustee — ____ (B) compensates, or provides adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease, for any actual pecuniary loss to such party resulting from such default[.] (emphasis added). This court agrees with the majority of courts that hold that the pecuniary loss language of § 365(b)(1)(B) does not create an independent entitlement to attorney’s fees and that attorney’s fees may be a part of the “pecuniary loss” under § 365(b)(1)(B) only if attorney’s fees are provided for by the specific terms of the lease or executory contract being assumed. Lacey v. Westside Print Works, Inc. (In re Westside Print Works, Inc.), 180 B.R. 557 (9th Cir. BAP 1995) (rejecting In re Westworld Community Healthcare, 95 B.R. 730 (Bankr.C.D.Cal.1989)); In re Child World, Inc., 161 B.R. 349 (Bankr.S.D.N.Y.1993); In re F & N Acquisition Corp., 152 B.R. 304 (Bankr.W.D.Wash.1993). Under the “American Rule,” a prevailing litigant is not entitled to attorney’s fees unless specifically provided for by statute or pursuant to the terms of a contract. Alyeska Pipeline Serv. v. Wilderness Soc., 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). In this case Three Sisters’ lease contains two provisions regarding Shangra-La’s liability for legal expenses. Paragraph 15.1 of the lease provides that The LESSEE expressly agrees to indemnify ... the LESSOR ... from and against any and all ... claims, actions or demands for labor, materials or" }, { "docid": "6850783", "title": "", "text": ". Paragraph 13.2 of the Lease provides in relevant part: \"Remedies. In the event of any such material default or breach by the Lessee, Lessor may at any time thereafter, with or without notice or demand and without limiting Lessor in the exercise of any right or remedy which the Lessor may have by reason of such default or breach. (a) Terminate Lessee’s right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor. In such event (i.e. default) Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reason of Lessee’s default including but not limited to, the cost of recovering the Premises, expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorney's fees, and any real estate commission actually paid.... (b) Maintain Lessee’s right to possession in which case the Lease shall continue in effect whether or not Lessee shall have abandoned the Premises. In such event Lessor shall be entitled to enforce all of Lessor's rights and remedies under this Lease, including the right to recover rent as it becomes due hereunder....” (emphasis added). . See also In re French, 131 B.R. 138, 141 (Bankr.E.D.Mo.1991) (following In re Westworld); In re BAB Enterprises, 100 B.R. 982, 984 (Bankr.W.D.Tenn.1989) (following Westworld and awarding attorney fees pursuant to subsection (B)). . See also In re Child World, Inc., 161 B.R. 349, 353-54 (Bankr.S.D.N.Y.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991) (rejecting In re Westworld; In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08) (Bankr.E.D.Pa.1989) (rejecting In re Westworld Community Healthcare, Inc. and holding subsection (B) does not create an independent right to attorney's fees)." }, { "docid": "17802300", "title": "", "text": "attorney’s fees and that attorney’s fees may be a part of the “pecuniary loss” under § 365(b)(1)(B) only if attorney’s fees are provided for by the specific terms of the lease or executory contract being assumed. Lacey v. Westside Print Works, Inc. (In re Westside Print Works, Inc.), 180 B.R. 557 (9th Cir. BAP 1995) (rejecting In re Westworld Community Healthcare, 95 B.R. 730 (Bankr.C.D.Cal.1989)); In re Child World, Inc., 161 B.R. 349 (Bankr.S.D.N.Y.1993); In re F & N Acquisition Corp., 152 B.R. 304 (Bankr.W.D.Wash.1993). Under the “American Rule,” a prevailing litigant is not entitled to attorney’s fees unless specifically provided for by statute or pursuant to the terms of a contract. Alyeska Pipeline Serv. v. Wilderness Soc., 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). In this case Three Sisters’ lease contains two provisions regarding Shangra-La’s liability for legal expenses. Paragraph 15.1 of the lease provides that The LESSEE expressly agrees to indemnify ... the LESSOR ... from and against any and all ... claims, actions or demands for labor, materials or related services incurred by LESSEE in connection with any work done upon leased Premises by LESSEE or anyone claiming under LESSEE so that the leased Premises shall at all times be free of any liens.... The LESSEE shall repay LESSOR, as additional rent hereunder on demand, all sums disbursed or deposited by LESSOR pursuant to the foregoing provisions of the Lease, including LESSOR’S costs and reasonable attorneys’ fees incurred. Paragraph 22.4 provides that In the event the LESSOR shall employ an attorney to collect any sum due under the Lease or enforce any obligation of the LESSEE hereunder, the LESSEE shall be liable for reasonable attorneys’ fees in the amount of fifteen percent (15%) or the maximum percentage allowed thereunder of the outstanding balance due under the Lease pursuant to N.C.G.S. § 6-21.2 now in effect or as amended. Consequently, attorneys’ fees incurred by Three Sisters in pursuit of its remedies regarding the lease default may be a'part of its pecuniary loss under § 365(b)(1)(B). Prior to bankruptcy Shangra-La allowed liens to be filed against" }, { "docid": "12616614", "title": "", "text": "120, 123 (N.C.App.1976)) (alteration omitted). “Thus the general rule [in North Carolina is] that a successful litigant may not recover attorneys’ fees, whether as costs or as an item of damages, unless such a recovery is expressly authorized by statute.” Id. “Even in the face of a carefully drafted contractual provision” authorizing payment of attorneys’ fees, the North Carolina courts “have consistently refused to sustain such an award absent statutory authority therefor.” Id. 266 S.E.2d at 814-15. Section 6-21.2 of the North Carolina General Statutes provides the statutory authority for recovering attorneys’ fees when permitted in a lease. See R.C. Assocs. v. Regency Ventures, Inc., 111 N.C.App. 367, 432 S.E.2d 394, 397 (N.C.App.1993) (noting that leases are “other evidence of indebtedness” under N.C. Gen.Stat. § 6-21.2). The statute caps an award of attorneys’ fees at fifteen percent of the outstanding balance owing on the instrument of indebtedness, see N.C. Gen.Stat. § 6- 21.2(1) & (2), and further requires that parties wishing to enforce the provisions of their attorneys’ fee agreements give adequate notice, see N.C. Gen.Stat. § 6-21.2(5). In sum, for Three Sisters to recover its postpetition attorneys’ fees through the operation of § 365(b)(1)(B) of the Bankruptcy Code, which incorporates North Carolina law, the lease between Three Sisters and Shangra-La must have a clear contractual provision allocating to Three Sisters the right to collect attorneys’ fees, that provision must be lawful under an express grant of North Carolina statutory authority, and Three Sisters must meet the requirements of the statute to collect its fees. 3. Applying this analysis to Three Sisters’s claim that it was improperly denied postpetition attorneys’ fees, we conclude that remand to the bankruptcy court for further consideration of factual matters is necessary. As to preliminary matters, the lease contains a clear attorneys’ fees provision in paragraph 22.4 of the lease, and, as we just discussed, such fees are recoverable under North Carolina law. Further, the Bankruptcy Code recognizes that a landlord must be compensated for actual pecuniary losses resulting from defaults that occurred under the lease during the course of the debtor’s insolvency. See 11" } ]

[ { "docid": "4737120", "title": "", "text": "such a ease, no suit could be brought within five years after payment. Where a claim for refund is filed in accordance with the statute prior to any allowance by the Commissioner, the Commissioner usually makes his decision thereon more than four years after the tax was paid and in many cases more than five years thereafter. A taxpayer might in some case perchance file a second claim for refund for the overpayment allowed by the Commissioner after such allowance and issuance of a certificate of overassessment and institute suit within six months after the filing of such second claim or within two years after the refusal of the Commissioner to pay such overpayment allowed, but I do not construe the provisions of section 3228 of the Revised Statutes, as amended, or the provisions of section 3226 of the Revised Statutes as amended (26 USCA § 156) to require that this be done. I am still of the opinion, therefore, that where the Commissioner allows an overpayment and issues and delivers a certificate of overassessment, there is a statement of the account for that year, and that a suit instituted within six years to recover the whole or any portion of such allowance, if payment thereof is refused for any reason, is timely. The offset or credit of a portion of the overpayment in favor of plaintiff for 1919 as disclosed by the certificate of overassessment did not prevent the account for 1919 from being a stated account. Toland v. Sprague, 12 Pet. 300, 335, 9 L. Ed. 1093. In this case the credit or offset was void and of no effect by express provision of the statute, otherwise the plaintiff would have had four or five years within which to file a claim for refund and two years after disallowance to bring suit for the erroneous credit as an erroneous and illegal collection for 1917. Compare United States v. Swift & Co., 282 U. S. 468, 51 S. Ct. 202, 75 L. Ed. 464. But in a case like the present one, no suit could be maintained to recover" } ]

[ { "docid": "12522573", "title": "", "text": "and that the six-year statute of limitation has no application. It is also contended by the defendant that no interest on the unrefunded portion of the 1919 overpayment of $34,814.04 can be recovered because the cause of action therefor accrued May 15,1924. The majority opinion holds that the Commissioner’s determination and allowance of the overpayment of $77,338.94 for 1919, the issuance and delivery of the certificate of overassessment, and his refusal to refund $34,814.04 of the overpayment when there was no tax legally collectible for any other taxable year did not give rise to an implied promise to pay the overpayment allowed, and that no cause of action with a new term of limitation arose upon the delivery of the certificate of overassessment; that, inasmuch as the suit was not instituted 'within five years after the 1919 tax was paid, nor within two years after the date of the Commissioner’s allowance of the overpayment, it is barred by the statute of limitation. With these conclusions I eannot agree. I can see no difference in principle between this case and the case of Bonwit Teller & Co. v. United States, 283 U. S. 258, 51 S. Ct. 395, 396, 75 L. Ed. 1018, and I am of opinion that this suit was timely instituted and that plaintiffs are entitled to recover the balance of $34,814.04 of the overpayment allowed for 1919 which was credited against a barred 1917 tax. The dissents in this court in Bonwit Teller & Co. v. United States, 39 F.(2d) 730, 738, 69 Ct. Cl. 638, were based on the view that the allowance of the overpayment of $10,866.43 was not barred at the time it was made because the taxpayer had filed a sufficient claim for refund, and that it was entitled to recover because “the allowance of the refund by the Commissioner is equivalent to an account stated between private parties, which is good until impeached for fraud or mistake.” In the Supreme Court the government contended that no claim for refund had been filed, and that the refund of the overpayment was barred at" }, { "docid": "12522571", "title": "", "text": "at a time when the 1917 tax was barred by the statute of limitation. A certificate of overassessment was duly prepared by the Commissioner and delivered to the taxpayer showing his allowance of the overpayment of $77,338.94 for 1919' and the division thereof to the amount refunded and the amount credited. After the receipt of the certificate of overassessment and the Treasury cheek for the portion of the 1919 overpayment in excess of the amount credited against the 1917 tax, Wentz died, and the executors of his estate made demand upon the Commissioner for payment of the balance of the 1919 overpayment. The Commissioner in his letter to the executors agreed that the 1917 tax was barred at the time the credit was made but refused to refund the balance of the 1919 overpayment on the ground that the statute of limitation of six years had barred a suit to recover the same. This conclusion of the Commissioner was based on the view that the cause of action for the overpayment for 1919 accrued on May 15, 1924. Counsel for the defendant contend that plaintiffs’ cause of action to recover the unrefunded portion of the 1919 overpayment, amounting to $34,814.04, credited against the barred 1917 tax, accrued May 15, 1924, the daté on which the Commissioner signed the schedule of refunds and credits allowing the overpayment of $77,338.94, and that this suit was barred by the statute of limitation of six years at the time it was instituted on June 10,1930; second, that plaintiffs are not entitled to recover because (a) the petition was not filed within five years after the payment of the tax for 1919, nor within two years after the Commissioner allowed the overpayment, and (b) that the action of the Commissioner in allowing the 1919 overpayment crediting a portion thereof against the 1917 tax, the refunding of the balance, and the issuance and delivery of the certificate of overassessment showing the details thereof, did not give rise to a cause of action, that plaintiffs had “no cause of action in the nature of an account stated,”" }, { "docid": "23659918", "title": "", "text": "of overassessment for a particular taxable year is a statement of the account for such year, and if there is no' tax legally due the Government for another-taxable year, the statute raises an implied promise to pay the overpayment allowed by the Commissioner and stated in the certificate of overassessment. In these circumstances-I cannot agree with the statement that “We are at a loss to-understand how it can be argued from this state of facts that the Government agreed that $34,814.04 more was due the taxpayer.” The Commissioner of Internal Revenue is not required to agree independently of his official allowance - of the overpayment and the issuance of a certificate of over-assessment as to the amount due the taxpayer. Finding IY, therefore, I think answers finding YI. The very fact that he,. as the responsible officer, officially makes the allowance of the overpayment for the particular taxable year and delivers to the taxpayer the certificate of overassessment showing the overpayment due the taxpayer for such taxable year gives rise to an implied promise to pay the overpayment if there is. no tax for another taxable year that can be legally collected, and such statement of the account for the taxable year involved “ gives rise to a new cause of action with a new term of limitation.” There is no appeal from the Commissioner’s - allowance of an overpayment and the statute of limitation which requires a suit to be instituted within two years after the disallowance of a claim for refund in the case of rejected claims, or within five years after the tax was paid, does not apply. The statute of limitation is jurisdictional in this court. In Naumkeag Steam Cotton Co. v. United States, 76 C.Cls. 687, this court recognized that a suit instituted within six years after the delivery of the certificate of overassessment to recover a portion of an overpayment allowed and credited against a barred tax for another year was timely but dismissed the petition on the ground of estoppel. The next contention of the defendant, which' is not discussed in the majority" }, { "docid": "19030190", "title": "", "text": "two years, and this leaves no foundation for plaintiff’s position. The 1928 act did not repeal section 3226, nor did it in any manner limit its provisions with reference to the time in which suit must be begun. Counsel for plaintiff also contend that the fact that the Commissioner found the overassessment constituted an allowance of the claim and a promise to pay the amount thereof and that the suit is based on the promise. This is merely a statement in another form that the determination of the overassessment constituted an account stated in favor of plaintiff to the amount of the overassessment. There is no basis for this contention. The action of the Commissioner in allowing the overassessment, crediting part of it on the taxes of other years and refunding the balance was all one-transaction and cannot be separated. The Commissioner did not merely allow the overassessment; he determined it and by the same determination announced that a part of it would not be refunded. Moreover, we have found as an ultimate fact that there is no evidence showing or tending to show any promise or agreement to pay the plaintiff any other sum than the amount which was refunded. For the reasons above set forth, we hold that the separate item of the overassessment contained in the certificate did not constitute an account stated upon which plaintiff could bring a suit within six years, and that plaintiff having failed to bring its suit within two years after the certificate or over-assessment and statement of account was issued, its action is barred under section 3226 of the Eevised Statutes. In support of the conclusions above stated with reference to an account stated, see R. H. Stearns Co. v. United States, supra; Leisenring v. United States, 78 C. Cls. 171 (certiorari denied); and Samuel Daube v. United States, 78 C. Cls. 754. It is clear that plaintiff’s petition should be dismissed and it is so ordered. Whaley, Judge; Williams, Judge; LittletoN, Judge; and Booth, Chief Justice, concur. SUPPLEMENTAL OPINION ON MOTION FOR NEW TRIAL Green, Judge, delivered the opinion of" }, { "docid": "4681249", "title": "", "text": "an overassessment of his tax for the year 1918 in the sum of $23,138.-63, and that it had been credited on his individual and partnership taxes as above stated. The plaintiff did nothing to indicate that this action was not perfectly satisfactory and agreeable to him until February 26, 1930, when he filed two claims for refund for 1918 in the respective amounts of $5,254.83 and $15,872.84, and one for 1917 in the amount of $5,254.83. It is not necessary, however, to consider any of the claims which plaintiff filed for refund, as none of them complied with the requisites of the statute and there is no contention that suit could be properly brought thereon. The contention of plaintiff is that the certificate of overassessment which. was delivered to him, as above set forth, constituted an account stated, and suit having been brought within six years from the time of the delivery of the certificate can now be maintained. This ease was argued and fully submitted before the decision of the Supreme Court in the case of R. H. Steams Co. v. United States, 54 S. Ct. 325, 78 L. Ed. -, decided January 8,19'34, and the opinion in that case leaves no doubt as to what the judgment in the ease at bar must be on several grounds. The evidence shows that waivers had been filed both as to the individual and partnership taxes, but these waivers expired April 1, 1924. The taxes in controversy were assessed March 29, 1924, but, as the collection was not made until the credits had been applied, the bar of the statute had run at that time. The plaintiff relies on section 609 of the Revenue Act of 1928 (26 USCA § 2609), which declares a credit against a barred deficiency to be void. But it will be observed that these credits were made at the taxpayer’s own request. In the first claim for refund which he filed he requested that the overassessment for 1918 be applied on the additional taxes assessed against him individually for 1916 and 1917, totaling $7,265.79. It has" }, { "docid": "14917639", "title": "", "text": "application should now be filed so that the indi vidual overassessments could be credited against the partnership assessments. “Accordingly, we enclose herewith said application, duly attested, showing additional tax due of $18,288.09, closing the accounts of Samuel Daube, David Daube, Max West-heimer, and Westheimer & Daube, for the years 1916, 1917, and 1918.” The Commissioner went through the usual form of signing a preliminary schedule of overassessments in favor of plaintiff for 1918 of $23,138.63 and directing the collector to apply any part of the overassessment against additional taxes for other years which were unpaid. The collector accordingly examined the accounts of plaintiff, and on April 25, 1924, applied the overassessment of $23,138.63 for 1918 as follows: $2,010.96 against additional tax due from plaintiff for the year 1916; $5,254.83 against additional tax due from plaintiff for the year 1917; and $15,872.84 against additional tax due from the partnership for 1917. On May 17, 1924, the Commissioner signed an appropriate schedule approving these credits, and subsequent thereto but about the same date the Commissioner delivered to plaintiff a certificate stating that there was an overassessment of his tax for the year 1918 in the sum of $23,138.63, and that it had been credited on his individual and partnership taxes as above stated. The plaintiff did nothing to indicate that this action was not perfectly satisfactory and agreeable to him until February 26,1930, ;when he filed two claims for refund for 1918 in the respective amounts of $5,254.83 and $15,872.84, and one for 1917 in the amount of $5,254.83. It is not necessary, however, to consider any of the claims which plaintiff filed for refund as none of them complied with the requisites of the statute and there is no contention that suit could be properly brought thereon. The contention of plaintiff is that the certificate of overassessment which was delivered to him, as above set forth, constituted an account stated, and suit having been brought within six years from the time of the delivery of the certificate can now be maintained. This case was argued, and fully submitted before the decision" }, { "docid": "7285325", "title": "", "text": "in this court in Leisenring et al. v. United States, 78 C.Cls. 171, 8 F.Supp. 858, and Doube v. United States, 78 C.Cls. 754, 5 F.Supp. 769, and the decision in United States v. Swift & Co., 282 U.S. 468, I am of opinion that the conclusion reached in Parks & Woolson Machine Co. v. United States, 75 C.Cls. 204, was erroneous. In that case the taxpayer filed a timely claim for refund of taxes collected by a credit made after the expiration of the period of limitation and instituted suit within two years after its rejection, but the decision in the case proceeded on the theory that an attempted credit of an allowed overpayment was void and ineffectual for any purpose and, in such case, the taxpayer’s cause of action was for the allowed overpayment, evidenced by the certificate of overassessment delivered after the refund schedule had been signed. For this reason the suit was dismissed. Plaintiff also contended that there was an account stated with reference to the overpayment credited to the barred tax, but, as to this, the court pointed out that the petition was not filed within six years after the date of delivery of the certificate of overassessment. Section 607 of the 1928 act declares that any tax paid after the expiration of the period of limitation shall constitute an overpayment and shall be refunded if a claim is filed; and section 609 declares that collection of a barred tax by credit shall likewise constitute an overpayment. United States v. Swift & Co., supra, held that a credit of an overpayment for one year against an- unpaid tax for another year constituted a collection of such tax on the date on which the Commissioner signed the schedule of refunds and credits and that if the tax was barred on that date, it could be recovered if a claim was filed within four years thereafter. 2. In the case at bar collection of the 1917 tax became barred April 1, 1924, when the unlimited waiver filed for that year expired, and the collection by credit on" }, { "docid": "19030191", "title": "", "text": "there is no evidence showing or tending to show any promise or agreement to pay the plaintiff any other sum than the amount which was refunded. For the reasons above set forth, we hold that the separate item of the overassessment contained in the certificate did not constitute an account stated upon which plaintiff could bring a suit within six years, and that plaintiff having failed to bring its suit within two years after the certificate or over-assessment and statement of account was issued, its action is barred under section 3226 of the Eevised Statutes. In support of the conclusions above stated with reference to an account stated, see R. H. Stearns Co. v. United States, supra; Leisenring v. United States, 78 C. Cls. 171 (certiorari denied); and Samuel Daube v. United States, 78 C. Cls. 754. It is clear that plaintiff’s petition should be dismissed and it is so ordered. Whaley, Judge; Williams, Judge; LittletoN, Judge; and Booth, Chief Justice, concur. SUPPLEMENTAL OPINION ON MOTION FOR NEW TRIAL Green, Judge, delivered the opinion of the court: Since the original opinion was rendered, the parties have made a stipulation with reference to certain additional facts material to the decision of the case but not heretofore presented to the court. Plaintiff has filed a motion for new trial in which amendments to the findings are requested and the matter of the recovery of the portion of the overassessment for 1918 which was applied upon a deficiency for 1917 is reargued at great length. In the original opinion, the court held that plaintiff’s claim for refund of the taxes of 1918 was rejected and it is assumed in argument that the basis of this holding was the validity of the credit. This is an error. The question of whether the claim was rejected does not in any way depend upon the determination of whether the credit was valid and effective. The act of the Commissioner in making the credit, whether valid or invalid, was one of the matters that showed that the claim was rejected. The facts are that the Commissioner had" }, { "docid": "12522575", "title": "", "text": "the time it was allowed by the Commissioner; that, even if the allowance was timely, the suit in this court was barred because it was not instituted within five years after the tax was paid nor within two years after the allowance of the overpayment. The Supreme Court, after holding that Bonwit Teller & Co. had filed a sufficient claim for refund of $10,866.43, said: “ * * * The Commissioner allowed the claim and on March 8 approved and scheduled to the collector the certificate of overassessment. * * * The collector credited $9,846.06 against the additional tax assessed for the year ending January 31, 1917. May 12, 1927, the Commissioner caused the certificate, showing the deduction made by the collector, to be delivered to plaintiff with a check for the balance of the overassessment and interest, $1,462.99. Plaintiff objected to the application of any part of the refund against such additional assessment on the ground that the 1917 tax was barred and declined to accept the check in full settlement, but offered to apply it in partial payment of the claim.” Upon these facts the court said that “the action * * * is grounded upon the determination evidenced by the certificate issued by the Commissioner May 12, 1927. Upon delivery of the certificate to plaintiff, there arose the cause of action on which this suit was brought. United States v. Kaufman, 96 U. S. 567, 570, 24 L. Ed. 792; United States v. Savings Bank, 104 U. S. 728, 26 L. Ed. 908; Bank of Green castle’s, 15 Ct. Cl. 225. There is no merit in the contention that the suit is barred.” In Daube v. United States, 53 S. Ct. 597, 598, 77 L. Ed. -, decided May 8, 1933, the court, after referring to the Bonwit Teller & Co. Case and the fact that in it a certificate of overassessment had been issued and delivered, said “the statement of an account gives rise to a new cause of action with a new term of limitation.” The decision of this court dismissing the petition in the" }, { "docid": "7285315", "title": "", "text": "of 1921 and that the statute of limitations had run against the collection of. the tax. This claim was rejected on October 10, 1928. On August 31, 1928, the estate of F. N. Beegle, by Nellie E! Beegle, residuary legatee, filed a claim for refund of $36,230.67 taxes paid for the year 1918 on the ground that the statute of limitations had run against the collection of the tax by credit against the overassessment. This claim was also rejected. The claim for refund of 1918 taxes, filed.March' 15, 1924, was never formally acted upon. It was. filed pursuant to a suggestion of the Commissioner who. thereafter’ considered the matter of plaintiff’s taxes, allowed the over-assessment for 1918, credited $36,230.67 on taxes for 1917». made up the account accordingly, and on July 19, 1924, sent a statement thereof to plaintiff in the form of a certificate. This certificate showed an overassessment of the taxes of 1918 and that $36,230.67 out of the overpayment upon the 1918 taxes had been credited upon the taxes of 1917. This left a balance of $4,821.90 which the certificate .showed to be due and refundable. Accordingly, a check for that amount in favor of the plaintiff was enclosed with the certificate. Under our holding in the case of Pratt & Whitney Co. v. United States, decided by this court April 9, 1934, this constituted a rejection of the claim for refund to the extent of $36,230.67. The time for beginning an action on this claim had expired at the time when this suit was begun which was April 24, 1929. Nor can the suit be based upon the claim filed August 31, 1928, for refund of the taxes of 1918, for the suit was not brought within five years after the taxes were paid. See section 3226 of the Bevisecl Statutes (section 1113, act of 1926). On both of these claims an action was barred. Counsel for plaintiff, however, insist that the certificate mailed to plaintiff (which was duly pleaded) constituted an account stated in its favor for the full amount of the overassessment and that" }, { "docid": "23659912", "title": "", "text": "the 1919 overpayment, amounting to $34,814.04, credited against the barred 1917 tax accrued May 15, 1924, the date on which the Commissioner signed the schedule of refunds and credits; allowing the overpayment of $77,338.94, and that this suit was barred by the statute of limitation of six years at the time it was instituted on June 10,1930; second, that plaintiffs are not entitled to recover because (a) the petition was not filed within five years after the pajunent of the tax for 1919,. nor within two years after the Commissioner allowed the overpayment, and (b) that the action of the Commissioner-in allowing the 19Í9 overpayment crediting a portion thereof against the 1917 tax, the refunding of the balance, and the issuance and. delivery of the certificate of overassessment showing the details thereof, did not give rise to a cause of action, that plaintiffs had “ no cause of action in the nature of an account stated ”, and that the six-year statute of limitation has no application. It is also contended by the defendant that no interest on the unrefunded portion of the 1919 overpayment of $34,-814.04 can be recovered because the cause of action therefor-accrued May 15, 1924. The majority opinion holds that the Commissioner’s determination and allowance of the overpayment of $77,338.94 for 1919, the issuance and delivery of the certificate of over-assessment, and his refusal to refund $34,814.04 of the overpayment when there was no tax legally collectible for any other taxable year did not give rise to an implied promise to pay the overpayment allowed, and that no canse of action with a new term of limitation arose upon the delivery of the certificate of overassessment; that inasmuch as the suit was not instituted within five years after the 1919 tax was paid, nor within two years after the date of the Commissioner’s allowance of the overpayment, it is barred by the statute of limitation. With these conclusions I cannot agree. I can see no difference in principle between this case and the case of Bonwit Teller & Co. v. United States, 283 U.S. 258, and" }, { "docid": "23659911", "title": "", "text": "was duly prepared by the Commissioner and delivered to the taxpayer showing his allowance of the overpayment of $77,-338.94 for 1919 and the division thereof to the amount refunded and the amount credited. After the receipt of the certificate of overassessment and the Treasury cheók for the portion of the 1919 overpayment in excess of the amount credited against the 1917 tax, Wentz died and the executors' of his estate made demand upon the Commissioner for payment of the balance of the 1919 overpayment. The Commissioner in his letter to the executors agreed that the 19TT tax was barred at the time the credit was made but refused to refund the balance of the 1919 overpayment on the ground that the statute of limitation of six years had barred a suit to recover the same. This conclusion of the Commissioner was based on the view that the cause of action for the overpayment for 1919 accrued on May 15,1924. Counsel for the defendant contend that plaintiffs’ cause of' action to recover the unrefunded portion of the 1919 overpayment, amounting to $34,814.04, credited against the barred 1917 tax accrued May 15, 1924, the date on which the Commissioner signed the schedule of refunds and credits; allowing the overpayment of $77,338.94, and that this suit was barred by the statute of limitation of six years at the time it was instituted on June 10,1930; second, that plaintiffs are not entitled to recover because (a) the petition was not filed within five years after the pajunent of the tax for 1919,. nor within two years after the Commissioner allowed the overpayment, and (b) that the action of the Commissioner-in allowing the 19Í9 overpayment crediting a portion thereof against the 1917 tax, the refunding of the balance, and the issuance and. delivery of the certificate of overassessment showing the details thereof, did not give rise to a cause of action, that plaintiffs had “ no cause of action in the nature of an account stated ”, and that the six-year statute of limitation has no application. It is also contended by the defendant that" }, { "docid": "15196403", "title": "", "text": "of the account. We have repeatedly held that this cannot be done, and, without citing all of the many cases that support our holding would call attention particularly to R. H. Stearns Co. v. United States, 291 U.S. 54, 54 S.Ct. 325, 78 L.Ed. 647; Leisenring v. United States, 3 F.Supp. 853 [4 F.Supp. 993] 78 Ct.Cl. 171, certiorari denied [291 U.S. 682] 54 S.Ct. 558, 78 L.Ed. 1069; and Samuel Daube v. United States, 5 F.Supp. 769 [78 Ct.Cl. 754].” The certificate of overassessment in the instant case sets forth (1) a total assessment for the year 1919 of $27,523.43, (2) a tax liability for the year of $2,943.77, and (3) an overassessment for the year of $24,579.66. It is then stated that $16,888.-99 of the overassessment is allowable and that $7,690.67 is barred by the statute of limitations. The latter amount, which was an overpayment, was the balance struck in the account as stated in the certificate, There was then, and is now, no controversy between the parties as to the correctness of this balance. No credits are involved, and the only grounds on which the government seeks to retain the overpayment is that a refund thereof was barred by the statute of limitations when the certificate was issued, which is not the fact. In these circumstances the certificate of overassessment constituted an account stated of an overpayment of taxes by plaintiff in the sum of $7,690.67 for the year 1919, and an implied promise on the part of the government to refund it to plaintiff, notwithstanding the erroneous statement in the certificate that the refund was barred by the statute of limitations. Shipley Construction & Supply Co. v. United States, 7 F.Supp. 492, 79 Ct.Cl. 736; Frank H. Gage v. United States, 14 F.Supp. 500, 82 Ct.Cl.-, decided May 4, 1936. The plaintiff, having instituted this suit as upon an account stated within six years after the certificate of overassessment was delivered to him, is entitled to recover, and is hereby awarded judgment in the sum of $7,690.67, together with interest thereon as provided by law. The" }, { "docid": "12522572", "title": "", "text": "May 15, 1924. Counsel for the defendant contend that plaintiffs’ cause of action to recover the unrefunded portion of the 1919 overpayment, amounting to $34,814.04, credited against the barred 1917 tax, accrued May 15, 1924, the daté on which the Commissioner signed the schedule of refunds and credits allowing the overpayment of $77,338.94, and that this suit was barred by the statute of limitation of six years at the time it was instituted on June 10,1930; second, that plaintiffs are not entitled to recover because (a) the petition was not filed within five years after the payment of the tax for 1919, nor within two years after the Commissioner allowed the overpayment, and (b) that the action of the Commissioner in allowing the 1919 overpayment crediting a portion thereof against the 1917 tax, the refunding of the balance, and the issuance and delivery of the certificate of overassessment showing the details thereof, did not give rise to a cause of action, that plaintiffs had “no cause of action in the nature of an account stated,” and that the six-year statute of limitation has no application. It is also contended by the defendant that no interest on the unrefunded portion of the 1919 overpayment of $34,814.04 can be recovered because the cause of action therefor accrued May 15,1924. The majority opinion holds that the Commissioner’s determination and allowance of the overpayment of $77,338.94 for 1919, the issuance and delivery of the certificate of overassessment, and his refusal to refund $34,814.04 of the overpayment when there was no tax legally collectible for any other taxable year did not give rise to an implied promise to pay the overpayment allowed, and that no cause of action with a new term of limitation arose upon the delivery of the certificate of overassessment; that, inasmuch as the suit was not instituted 'within five years after the 1919 tax was paid, nor within two years after the date of the Commissioner’s allowance of the overpayment, it is barred by the statute of limitation. With these conclusions I eannot agree. I can see no difference in principle" }, { "docid": "12522579", "title": "", "text": "as to the amount due the taxpayer. Finding 4, therefore, I think answers finding 6. The very fact that he, .as the responsible officer, officially makes the allowance of the overpayment for the particular taxable year and delivers to the taxpayer the certificate of overassessment showing the overpayment due the taxpayer for such taxable year gives rise to an implied promise to pay the overpayment if there is no tax for another taxable year that can be legally collected, and such statement of the account for the taxable year involved “gives rise to a new cause of action with a new term of limitation.” There is no appeal from the Commissioner’s allowance of an overpayment and the statute of limitation which requires a suit to be instituted within two years after the disallowance of a claim for refund in the ease of rejected claims, or within five years after the tax was paid, does not apply. The statute of limitation is jurisdictional in this court. In Naumkeag Steam Cotton Co. v. United States, 2 F. Supp. 126, decided January 9, 1933, this court recognized that a suit instituted within six years after the delivery of the certificate of overassessment to recover a portion of an overpayment allowed and credited against a barred tax for another year was timely but dismissed the petition on the ground of estoppel. The next contention of the defendant, which is not discussed in the majority opinion, is that plaintiffs’ cause of action for interest on the unrefunded portion of the 1919 overpayment accrued when the Commissioner signed the schedule of refunds and credits May 15, 1924, and was therefore barred at the time the petition was filed on June 10, 1930. We held in Bonwit Teller & Co. v. United States, 52 F.(2d) 904, 72 Ct. Cl. 559; certiorari denied 285 U. S. 538, 52 S. Ct. 311, 76 L. Ed. 931, a case in all respects similar to the present, that, where an overpayment was timely allowed and illegally credited, interest continued to run under the statute when a suit was brought to recover" }, { "docid": "23659913", "title": "", "text": "no interest on the unrefunded portion of the 1919 overpayment of $34,-814.04 can be recovered because the cause of action therefor-accrued May 15, 1924. The majority opinion holds that the Commissioner’s determination and allowance of the overpayment of $77,338.94 for 1919, the issuance and delivery of the certificate of over-assessment, and his refusal to refund $34,814.04 of the overpayment when there was no tax legally collectible for any other taxable year did not give rise to an implied promise to pay the overpayment allowed, and that no canse of action with a new term of limitation arose upon the delivery of the certificate of overassessment; that inasmuch as the suit was not instituted within five years after the 1919 tax was paid, nor within two years after the date of the Commissioner’s allowance of the overpayment, it is barred by the statute of limitation. With these conclusions I cannot agree. I can see no difference in principle between this case and the case of Bonwit Teller & Co. v. United States, 283 U.S. 258, and I am of opinion that this suit was timely instituted and that plaintiffs are entitled to recover the balance of $34,814.04 of the overpayment allowed for 1919 which was credited against a barred 1917 tax. The dissents in this court in Bonwit Teller Co. v. United States, 69 C.Cls. 638, were based on the view that the allowance of the overpayment of $10,866.43 was not barred at the time it was made because the taxpayer had filed a sufficient claim for refund and that it was entitled to recover because “ the allowance of the refund by the Commissioner is equivalent to an account stated between private parties, which is good until impeached for fraud or mistake.” In the Supreme Court the Government contended that no claim for refund had been filed, and that the refund of the overpayment was barred at the time it was allowed by the Commissioner; that even if the allowance was timely the suit in this court was barred because it was not instituted within five years after the tax" }, { "docid": "12522558", "title": "", "text": "October 17,1923, had been approved by this office as to the adjustment for this year.” The certificate further went on to state, “The amount of the overassessment will be abated, credited, or refunded, as indicated below,” and also, “If an overpayment has been made and other taxes are due, credit will be made accordingly, and any amount refundable is covered by Treasury cheek transmitted herewith.” Notations on the certificate made “below” showed that, of the overassessment, $34,814.04 had been credited on additional taxes for the year 1917 and that $42,524.90 was refunded. This certificate, together with a Treasury check for the amount of the refund of $42,524.90, was delivered to the testator about June 15, 1924. After the death of Daniel B. Wentz and on May 13, 1930, the executors of his estate made application to the Commissioner of Internal Revenue for interest on the overpayment for the year 1919 and for a refund of $34,814.04 of the 1919 overpayment which had been credited against taxes of 19171 In this claim they set out a copy of the certificate of overassessment for 1919 and alleged that the interest was due thereon and that the credit above referred to was void, not having been made within the statutory period applicable thereto. This claim was denied. The petition was filed and the suit begun June 10, 1930. This ease, like many others, turns on the question of whether the suit was brought in time, and the parties agree that, unless the suit can be based on an “account stated,” the period of limitations for its commencement has expired. It is contended on behalf of the plaintiffs that the certificate of overassessment referred to above constituted an ae- • count stated in favor of the taxpayer for $34,814.04, and that consequently the plaintiffs had six years from 'the time it was delivered to the taxpayer in which to bring suit, and that, the suit having been instituted June 10, 1930, it was begun in time. The defendant contends that the acts of the Commissioner, including the delivery of the certificate of overassessment, did" }, { "docid": "4681248", "title": "", "text": "so that the individual overassessments .could be credited against the partnership assessments. “Accordingly, we enclose herewith said application, duly attested, showing additional tax due of $13,233.09, closing the accounts of Samuel Daube, David Daube, Max Westheimer, and Westheimer & Daube, for the years 1916,1917, and 1918.” The Commissioner went through the usual form of signing a preliminary schedule of overassessments in favor of plaintiff for 1918 of $23,138.63 and directing the collector to apply any part of the overassessment against additional taxes for other years which were unpaid. The collector accordingly examined the accounts of plaintiff, and on April 25, 1924, applied the overassessment of $23,138.-63 for 1918 as follows: $2,010.96 against additional tax due from plaintiff for the year 1916; $5,254.83 against additional tax due from plaintiff for the year 1917; and $15,-872.84 against additional tax due from the partnership for 1917. Ón May 17, 1924, the Commissioner signed an appropriate schedule approving these credits, and subsequent thereto but about the same date the Commissioner delivered to plaintiff a certificate stating that there was an overassessment of his tax for the year 1918 in the sum of $23,138.-63, and that it had been credited on his individual and partnership taxes as above stated. The plaintiff did nothing to indicate that this action was not perfectly satisfactory and agreeable to him until February 26, 1930, when he filed two claims for refund for 1918 in the respective amounts of $5,254.83 and $15,872.84, and one for 1917 in the amount of $5,254.83. It is not necessary, however, to consider any of the claims which plaintiff filed for refund, as none of them complied with the requisites of the statute and there is no contention that suit could be properly brought thereon. The contention of plaintiff is that the certificate of overassessment which. was delivered to him, as above set forth, constituted an account stated, and suit having been brought within six years from the time of the delivery of the certificate can now be maintained. This ease was argued and fully submitted before the decision of the Supreme Court in the" }, { "docid": "10823694", "title": "", "text": "under section 3226 must be begun within two years, and this leaves no foundation for plaintiff’s position. The 1928 act did not repeal section 3226, nor did it in any manner limit its provisions with reference to the time in which suit must be begun.' Counsel for plaintiff also contend that the fact that the Commissioner found the over-assessment constituted an allowance of the claim and a promise to pay the amount thereof and that the suit is based on the promise. This is merely a statement in another form that the determination of the overassessment constituted an account stated in favor of plaintiff to the amount of the over-assessment. There is no basis for this contention. The action of the Commissioner in allowing the overassessment, crediting part of it on the taxes of other years and refunding the balance, was all one transaction and cannot be separated. The Commissioner did not merely allow the overassessment; he determined it, and by the same determination announced that a part of it would not be refunded. Moreover, we have found as an ultimate fact that there is no evidence showing or tending to show any promise or agreement to pay the plaintiff any other sum than the amount which was refunded. For the reasons above set forth, we hold that the separate item of the overassessment contained in the certificate did not constitute an account stated upon which plaintiff could bring a suit within six years, and that plaintiff having failed to bring its suit within two years after the certificate of overassessment and statement of account was issued, its action is barred under section 3226 of the Revised Statutes. In support of the conclusions above stated with reference to an account stated, see R. H. Stearns Co. v. United States, supra, Leisenring v. United States, 3 F. Supp. 853, 78 Ct. Cl. - (certiorari denied 54 S. Ct. 558, 78 L. Ed. -), and Samuel Daube v. United States (Ct. Cl.) 5 F. Supp. 769 (decided February 5, 1934). It is clear that plaintiff’s petition should be dismissed and it is" }, { "docid": "14917640", "title": "", "text": "plaintiff a certificate stating that there was an overassessment of his tax for the year 1918 in the sum of $23,138.63, and that it had been credited on his individual and partnership taxes as above stated. The plaintiff did nothing to indicate that this action was not perfectly satisfactory and agreeable to him until February 26,1930, ;when he filed two claims for refund for 1918 in the respective amounts of $5,254.83 and $15,872.84, and one for 1917 in the amount of $5,254.83. It is not necessary, however, to consider any of the claims which plaintiff filed for refund as none of them complied with the requisites of the statute and there is no contention that suit could be properly brought thereon. The contention of plaintiff is that the certificate of overassessment which was delivered to him, as above set forth, constituted an account stated, and suit having been brought within six years from the time of the delivery of the certificate can now be maintained. This case was argued, and fully submitted before the decision of the Supreme Court in the case of R. H. Stearns Co. v. United States, decided January 8, 1934, 291 U.S. 54, and the opinion in that case leaves no doubt as to what the judgment in the case at bar must be on several grounds. The evidence shows that waivers had been filed both as to the individual and partnership taxes, but these waivers expired April 1, 1924. The taxes in controversy were assessed March 29, 1924, but as the collection was not made until the credits had been applied the bar of the statute had run at that time. The plaintiff relies on section 609 of the Revenue Act of 1928 which declares a credit against a barred deficiency to be void. But it will be observed that these credits were made at the taxpayer’s own request. In the first claim for refund which he filed he requested that the overassessment for 1918 be applied on the additional taxes assessed against him individually for 1916 and 1917, totaling $7,265.79. It has also been" } ]

[ { "docid": "6240229", "title": "", "text": "agencies ... shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Retaliation against an employee who alleges such discrimination is prohibited by 42 U.S.C. § 2000e~3(a), which states: It shall be an . unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter. A plaintiff claiming unlawful retaliation must prove her case under the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Smith v. District of Columbia, 430 F.3d 450, 455 (D.C.Cir.2005). Under this framework, the plaintiff must establish the three elements of a prima facie case of retaliation: first, that she engaged in protected activity; second, that she was subjected to adverse action by the employer; and third, that there existed a causal link between the adverse action and the protected activity. Such a showing raises a rebuttable presumption of unlawful discrimination and shifts to the defendant the burden to rebut the presumption by asserting a legitimate, non-discriminatory reason for its actions. If the defendant does so, the McDonnell Douglas framework disappears, and we must decide whether a reasonable jury could infer intentional discrimination from the plaintiffs prima facie case and any other evidence the plaintiff offers to show that the actions were discriminatory or that the non-discriminatory justification was pretextual. Id. (internal quotation marks and citations omitted). We first examine whether Broderick engaged in activity protected by Title VII. Broderick’s previous sexual harassment lawsuit clearly qualifies, as she “made a charge,” 42 U.S.C. § 2000e-3(a), of unlawful discrimination based on sex. See Singletary v. District of Columbia, 351 F.3d 519, 525 (D.C.Cir.2003); McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 483 n. 8 (7th Cir.1996). Less clear is whether the June 1998 memo that Broderick sent to her supervisors and the EEO office" } ]

[ { "docid": "20265010", "title": "", "text": "1 n. 1. Accordingly, the court will not address the plaintiffs retaliation claim. Bailey v. WMATA, 696 F.Supp.2d 68, 71 n. 5 (D.D.C.2010). Plaintiffs suggestion that Defendant is precluded from seeking summary judgment is thus entirely misplaced. Title VII provides, in relevant part, that it is unlawful for an employer “to discriminate against any of [its] employees ... because [she] has made a charge ... or participated in any manner in an investigation” of discrimination. 42 U.S.C. § 2000e-3(a). “In order to prevail upon a claim of unlawful retaliation, an employee must show ‘she engaged in protected activity, as a consequence of which her employer took a materially adverse action against her.’ ” Taylor v. Solis, 571 F.3d 1313, 1320 (D.C.Cir.2009) (quoting Weber v. Battista, 494 F.3d 179, 184 (D.C.Cir.2007)). “[A] ‘materially adverse’ action for purposes of a retaliation claim is one that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ” Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C.Cir.2010) (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). Plaintiff initially suggested in her First Amended Complaint that she suffered a materially adverse employment action when “she was transferred to Land-over, Maryland to work as a recruiter for bus operators.” First Am. Compl., ¶24. Plaintiff, however, appears to have abandoned this theory, since it appears nowhere in her briefs. Instead, she now argues that the adverse action occurred when “Sampson attempted to force her to resign” by offering her a severance package and then questioned her about “projects she was expected to work on.” Pl.’s Reply at 4. Such an allegation is plainly insufficient to prevail here because no reasonable jury could find that the proffer of a severance package and resulting discussion constituted a materially adverse employment action. “To establish an adverse personnel action in the absence of diminution of pay or benefits, plaintiff must show an action with ‘materially adverse consequences affecting the terms, conditions, or privileges of employment.’” Stewart v. Evans, 275 F.3d 1126 (D.C.Cir.2002) (quoting Brown v." }, { "docid": "19233800", "title": "", "text": "Opinion for the Court filed by Circuit Judge HENDERSON. KAREN LeCRAFT HENDERSON, Circuit Judge: Rhonda Baird is a lawyer for the Pension Benefit Guarantee Corporation (PBGC). She is the former president of the employees’ union and a frequent filer of Title VII claims on behalf of herself and others. • Baird claims that, in retaliation for her Title VII activities, the PBGC made her work environment a hostile one. Her two complaints recount several instances of rude emails, name-calling, lost tempers and unprofessional behavior — all of which the PBGC failed to investigate or remediate. Although Baird paints an unpleasant picture, she does not allege that the PBGC has done anything illegal. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (“Title VII ... does not set forth a general civility code for the American workplace.” (quotation marks omitted)). We therefore affirm the dismissal of her two complaints. I. Title VII prohibits a federal employer from discriminating against an employee based on his race, sex, religion or nationality. 42 U.S.C. § 2000e-16(a). It also contains an anti-retaliation provision, barring an employer from taking an adverse action against an employee “because he has opposed any practice made unlawful by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under [Title VII].” Id. § 2000e-3(a). To ' prove retaliation, a plaintiff must show that “(1) [he] engaged in protected activity; (2) he was subjected to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse action.” Hairston v. Vance-Cooks, 773 F.3d 266, 275 (D.C.Cir.2014). An adverse action must be “material” — i.e., “harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68, 57, 126 S.Ct. 2405. We have recognized a special type of retaliation claim based on a “hostile work environment.” See Hussain v. Nicholson, 435 F.3d 359, 366 (D.C.Cir.2006). A hostile environment" }, { "docid": "22183163", "title": "", "text": "of employment action “sufficiently disadvantageous to constitute an adverse employment action” in a Title VII case. Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir.2004) (citing Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000)) (discussing Title VIPs discriminatory action provision). Second, in a decision issued the day after the district court’s in the instant case, the Supreme Court held that the scope of Title VII’s anti-retaliation provision is broader than that of its discriminatory action provision, and that any action that “could well dissuade a reasonable worker from making or supporting a charge of discrimination” could constitute retaliation. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2409, 165 L.Ed.2d 345 (2006). In addition to her allegations about her reduction in job responsibilities, Plaintiff alleges that Clark and Evans specifically conspired to “not give [her] work” in order to “make her leave.” These allegations surely meet Burlington Northern’s, standard. Any reasonable employee that believed that her employers would engage in a concerted effort to drive her from her job if she engaged in Title VII protected activity would think twice about doing so. Defendants’ argument to the contrary— that because Plaintiff herself was not dissuaded from again reporting Clark’s harassment, the complained of conduct could not have been retaliatory under Burlington Northern — is entirely unconvincing, since it would require that no plaintiff who makes a second complaint about harassment could ever have been retaliated against for an earlier complaint. Finally, Defendants argue that Plaintiff does not adequately allege the sort of causal connection between her protected activity and Defendants’ retaliation required by the third prong, because “[w]hile a plaintiff may allege [such] a causal connection ... through temporal proximity, case law requires that such proximity in time must be ‘very close.’ ” Defendants argue that, in the instant case, Plaintiff fails to allege such proximity because there was a year between when she first reported Clark’s conduct to Arendacs in 2000 and Clark’s removal of her secretarial functions in 2001. Even setting aside the fact that" }, { "docid": "18242257", "title": "", "text": "does not rise to the level of objectively tangible harm. Kinsey v. City of Jacksonville, No. 3:01-785, 2005 WL 3307211, at *7-8, 2005 U.S. Dist. LEXIS 31870, at *22-23 (M.D.Fla. Dec. 6, 2005) (even requiring signature to acknowledge receipt of form not an adverse action under Title VII); see also Williams v. Dodaro, 576 F.Supp.2d 72, 88-89 (D.D.C.2008) (letter reminding plaintiff that she was required to keep supervisor apprised of information did not constitute adverse employment action where letter “did not indicate that it was a reprimand, ... was not placed in [plaintiffs] personnel file, and ... did not lead to any disciplinary action levied against [plaintiff]”); see also Cochise v. Salazar, 601 F.Supp.2d 196, 201 (D.D.C.2009) (letters of counseling or warning without attendant effects on employment are not “materially adverse”), aff'd, 377 Fed.Appx. 29 (D.C.Cir.2010); Hutchinson v. Holder, 668 F.Supp.2d 201, 217-18 (D.D.C.2009) (requirement that plaintiff communicate sick leave requests directly to supervisor instead of normal procedure of communicating such requests to a co-worker did not constitute adverse action). As such, a request that plaintiff merely acknowledge the receipt of the memorandum does not constitute an adverse employment action, and this claim will be dismissed. B. Retaliation “The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Burlington, 548 U.S. at 67, 126 S.Ct. 2405. To prove a retaliation claim under Title VII, a plaintiff “generally must establish that he or she suffered (i) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C.Cir.2008). For a retaliation claim, the concept of adverse action is broader than in the discrimination context since it “can encompass harms unrelated to employment or the workplace ‘so long as a reasonable employee would have found the challenged action materially adverse.’ ” Rattigan v. Holder, 604 F.Supp.2d 33, 46 (D.D.C.2009) (quoting Baloch, 550 F.3d at 1198 n. 4 (internal citation omitted)). To be materially adverse, the action must be one that “well might have ‘dissuaded a reasonable worker from making" }, { "docid": "3478843", "title": "", "text": "Am. Compl. ¶¶ 63-66. However, such allegations are insufficient — both because gender “imbalance” alone cannot establish disparate impact liability, Wards Cove Packing, 490 U.S. at 657, 109 S.Ct. 2115, and because mere allegations without evidence cannot enable Martin to meet her summary judgment burden, see Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (explaining that nonmovant must “go beyond the pleadings”). Accordingly, the Court grants summary judgment to the District on Count Two. D. Retaliation in Violation of Title VII and the D.C. Human Rights Act (Counts Three and Four) In Count Three, Martin alleges that the District retaliated against her for filing her discrimination complaint and for participating in the investigation of the EEO complaint, in violation of Title VII. See Am. Compl. ¶¶ 127-32. In Count Four, Martin alleges that all Defendants retaliated against her for the same activities, in violation of the DCHRA. See Am. Compl. ¶¶ 133-38. The retaliation allegedly suffered by Martin includes the denial of promotion, training, volunteer opportunities, overtime pay, reasonable accommodation, and work assignments; unduly burdensome work assignments; and verbal abuse and embarrassment. See id. ¶¶ 130, 137. Under Title VII, it is unlawful for an employer to discriminate against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, ... or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-8(a). “To prove retaliation [under Title VII], the plaintiff generally must establish that he or she suffered (i) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim.” Baloch, 550 F.3d at 1198. Under Title VII, the elements of a prima facie case of retaliation are: “first, that [the plaintiff] engaged in protected activity; second, that she was subjected to adverse action by the employer; and third, that there existed a causal link between the adverse action and the protected activity.” Broderick v. Donaldson, 487 F.3d 1226, 1231-32 (D.C.Cir.2006) (citation omitted). The materially adverse action must be such that it would “dissuad[e]" }, { "docid": "1512930", "title": "", "text": "2007, complaint, constituted an altogether reasonable attempt to avoid further harm. Cf. Chaloult, 540 F.3d at 67 (“At no time prior to her resignation did [plaintiff] complain about sexual harassment.”). Further, the DOE’s arguments show a misunderstanding of its obligations under Title VII as to sexual harassment in other ways. A complainant need not, on a first report to the employer, give a “detailed, full” report to put the employer on notice. When a supervisor’s behavior is at issue, an employee need only make “reasonable” use of the reporting procedures provided by her employers to render the Faragher-Ellerth defense unavailable. Faragher, 524 U.S. at 807, 118 S.Ct. 2275; see also Chaloult, 540 F.3d at 66; Arrieta-Colon, 434 F.3d at 86. B. A Reasonable Jury Could Find That Agusty Suffered Prohibited Retaliation, lp2 U.S.C. § 2000e-3 Agusty also brought a claim under Title VII’s anti-retaliation provision, which, inter alia, forbids discrimination against employees because they have opposed practices that are unlawful under Title VII. 42 U.S.C. § 2000e-3. To prevail, Agusty must show “that (1) she engaged in protected activity; (2) she suffered some materially adverse action; and (3) the adverse action was causally linked to her protected activity.” Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73, 81 (1st Cir.2007). The relevant inquiry for purposes of Agusty’s retaliation claim is not whether Agusty suffered an “employment action,” but instead whether she experienced a materially adverse action, that is, mistreatment that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); see also Dixon, 504 F.3d at 81. A reasonable jury could conclude that the intensification of Hernández’s harassment, following Agusty’s several reports to the DOE and Hernández’s supervisor and culminating in the sexual assault, met this requirement. The timing of this escalated harassment creates a reasonable inference that Hernández’s behavior was motivated by Agusty’s protected activity. See Wyatt v. City of Boston, 35 F.3d 13, 16 (1st Cir.1994) (per curiam) (“One way of showing causation" }, { "docid": "3478844", "title": "", "text": "work assignments; and verbal abuse and embarrassment. See id. ¶¶ 130, 137. Under Title VII, it is unlawful for an employer to discriminate against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, ... or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-8(a). “To prove retaliation [under Title VII], the plaintiff generally must establish that he or she suffered (i) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim.” Baloch, 550 F.3d at 1198. Under Title VII, the elements of a prima facie case of retaliation are: “first, that [the plaintiff] engaged in protected activity; second, that she was subjected to adverse action by the employer; and third, that there existed a causal link between the adverse action and the protected activity.” Broderick v. Donaldson, 487 F.3d 1226, 1231-32 (D.C.Cir.2006) (citation omitted). The materially adverse action must be such that it would “dissuad[e] a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (citation omitted). Where a plaintiff allegedly suffers a materially adverse action, the defendant can prevail by offering “legitimate, nondiscriminatory reasons” for its action. Baloch, 550 F.3d at 1200 (citing Brady, 520 F.3d at 494). The DCHRA provides that “[i]t shall be an unlawful discriminatory practice to coerce, threaten, retaliate against, or interfere with any person in the exercise or enjoyment of, or on account of having exercised or enjoyed ... any right granted or protected” under the Act. D.C. Code § 2-1402.61(a). The elements of a prima facie case for a DCHRA retaliation claim are the same as those under Title VII. See Arthur Young & Co. v. Sutherland, 631 A.2d 354, 367-68 (D.C.1993). Applying the above principles, the Court concludes that Martin has failed to introduce evidence that any act of alleged retaliation had a causal relationship to her protected complaints. The amended" }, { "docid": "4860364", "title": "", "text": "under Title VII because the activity that allegedly spurred retaliation against Bloom was not “protected activity” within the meaning of the statute. Defs.’ Mem. at 12. Title VII prohibits employer reprisals in response to two types of protected activity: opposition activity, i.e., opposing “any practice made an unlawful employment practice by” Title VII; and participation activity, ie., making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a); see Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., 555 U.S. 271, 129 S.Ct. 846, 850, 172 L.Ed.2d 650 (2009). To state a Title VII retaliation claim, a plaintiff must allege materially adverse action in response to one of these types of protected activity. See Stewart v. Evans, 275 F.3d 1126, 1134 (D.C.Cir.2002). Bloom’s complaint alleges that she has experienced retaliation “since lodging her first complaint between January 21-24, 2003.” Compl. ¶ 91. That first complaint was prompted by Trombecky’s behavior at a conference, where she “subjected Ms. Bloom to harassment.” Compl. ¶¶ 37-38. Even when taken as true and construed in her favor, these bare allegations are insufficient to establish that Bloom complained of conduct that is unlawful under Title VIL A complaint that “alleges harassment generally and generically ... [and does] not refer to harassment ... based on ... [a] protected category” is not protected oppositional activity under Title VII. Lemmons v. Georgetown Univ. Hosp., 431 F.Supp.2d 76, 92 (D.D.C.2006) (first omission and first alteration in original) (internal quotations marks omitted); cf. Middlebrooks v. Godwin Corp., 722 F.Supp.2d 82, 89-90 (D.D.C.2010) (dismissing a § 1981 retaliation claim because the plaintiff, who described reporting unsafe or unlawful behavior but not race discrimination, had not engaged in protected activity). Bloom’s complaint neither alleges that Trombecky’s harassment was based on a protected characteristic nor that Bloom reported it that way. See Compl. ¶¶ 37-38. There is thus no basis for the Court to conclude that Bloom’s complaint constituted protected activity. Accordingly, Bloom has failed to state a claim of retaliation under Title VII. E. Bloom’s Hostile Work Environment Claim (Count" }, { "docid": "17042553", "title": "", "text": "self-serving declaration cannot defeat the undisputed evidence showing that he clearly considered the Docket Clerk and telecommuting incidents to be unlawful well before December 2009. Because Defendants have demonstrated that Plaintiff failed to exhaust his retaliation claims based on the two Spring 2009 incidents, therefore, the Court will grant Defendants’ Motion for Summary Judgment with respect to those claims. 2. Materially Adverse Employment Actions Although Plaintiff exhausted his administrative remedies with regard to the remaining three allegedly retaliatory incidents, none of them constitutes a materially adverse employment action. “[A] ‘materially adverse’ action for purposes of a retaliation claim is one that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ” Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C.Cir.2010) (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)); see also Mogenhan v. Napolitano, 613 F.3d 1162, 1166 (D.C.Cir.2010) (noting that D.C. Circuit has “applied the Burlington Northern standard to retaliation claims under the Rehabilitation Act as well as Title VII”). Because, even giving Plaintiff the benefit of all potential inferences, no reasonable jury could find that not being invited to an office holiday party, being told not to consult the Ethics Office regarding a particular issue, or being sent an email suggesting that “disciplinary action” might follow would dissuade a reasonable employee from supporting a charge of discrimination, the Court will dismiss these claims under Rule 12(b)(6). a. Holiday Party Plaintiff undermines the gravity of his suit by devoting three full pages of his Opposition to his argument that Defendants retaliated against him in violation of Title VII and the Rehabilitation Act when Anderson failed to invite him to an office holiday party. He cites Passer v. American Chemical Society, 935 F.2d 322, 332 (D.C.Cir.1991), for the proposition that “exclusion from a party may rise to the level of a materially adverse action.” Opp. at 25. Plaintiff accurately describes that case as holding that the “cancellation of [a] major public symposium in [an] employee’s honor could be an act of retaliation.” Id." }, { "docid": "3012090", "title": "", "text": "participating in legal efforts against the alleged treatment.” Coleman v. Potomac Elec. Power Co., 422 F.Supp.2d 209, 212 (D.D.C.2006) (citation omitted). A plaintiff-^must be .opposing an employment practice made unlawful by the statute under which, she has, filed her claim of retaliation.” Lemmons v. Georgetown Univ. Hosp., 431 F.Supp.2d 76, 91-92 (D.D.C.2006). Here, Plaintiff sufficiently alleges retaliation in violation of Title VII. Specifically, she alleges that she engaged in statutorily protected .activity by filing a discrimination complaint in 2009, and that after that complaint was resolved and she was returned to her MDO position, McLlwain “began a barrage of personal attacks against [her] in an effort to retaliate to cause her termination from employment.” (Compl. ¶¶ 9-10). Plaintiff also alleges that this barrage of attacks' continued through the remainder of her employment with the USPS, and included numerous adverse personnel actions, including her removal from her position in 2013. As discussed above, the manner in which Plaintiff links all of the conduct, of which-she complains suffices to make out a claim for retaliation-based hostile work environment. b. Plaintiffs FMLA Claim (Count IV) “An employer may be held liable for violating the FMLA under two distinct claims: (1) interference, if the employer restrained, denied, or interfered with the employee’s FMLA rights, and (2) retaliation, if the employer took adverse action against the employee because the employee took leave or otherwise engaged in activity protected by the Act.” Holloway v. D.C. Gov’t, 9 F.Supp.3d 1, 7 (D.D.C.2013) (citing Deloatch v. Harris Teeter, Inc., 797 F.Supp.2d 48, 64 (D.D.C.2011); Price v. Washington Hosp. Ctr., 321 F.Supp.2d 38, 45-46 (D.D.C.2004)). The Complaint here alleges facts sufficient to state claims for both interference and retaliation in violation of the FMLA. As an initial matter, Plaintiffs mother’s illness is alleged to constitute an FMLA qualifying event, as Plaintiff was, in fact, granted FMLA-leave to be with her mother in March 2012. As noted above, while it is unclear precisely how long Plaintiff was on FMLA leave before McLlwain denied her request for further FMLA leave and ordered her to return to work, the court construes Plaintiffs" }, { "docid": "8250288", "title": "", "text": "Furr did not indicate that she was complaining about a Title VII violation, noting that Furr did not refer to any protected classification, and that she confirmed that Dr. Gaston had never “called her a name or touched her.” See Rangel v. Sanofi Aventis U.S., LLC, 507 Fed.Appx. 786, 791 (10th Cir.2013) (to qualify as protected opposition, employee must convey to employer concern that employer has engaged in unlawful practice; vague reference to discrimination and harassment without indication that misconduct was motivated by unlawful factor not protected activity). In context, however, Dawson knew of Furr’s prior involvement in reports of sexual harassment at Ridge-wood and Furr’s prior complaints of a hostile work environment; thus Furr’s reference to a hostile work environment in the phone call on August 29 could be seen as a complaint about retaliation. Plaintiff also asserts that she engaged in protected opposition on October 5, 2012, when she sent Krause an email complaining of harassment, and referring to the sexual harassment complaints by employees in 2011. As noted, defendant does not contest that plaintiff engaged in protected activity on October 5, 2012, and the Court finds that the October 5, 2012 email constitutes protected activity. 2. Materially Adverse Action As a preliminary matter, the parties disagree as to what constitutes a materially adverse action in a claim for retaliatory harassment. Nueterra cites McGowan v. City of Eufala, 472 F.3d 736, 743 (10th Cir.2006), for the proposition that to make out a retaliation claim based on a hostile work environment, “a Title VII plaintiff must present evidence that “the workplace [was] .. .permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” After McGowan, however, the United States Supreme Court held that instead of showing an action that affected the terms and conditions of employment, a retaliation plaintiff need only meet a lower standard—that the challenged action was mar terially adverse, he. that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. See Burlington N." }, { "docid": "6936061", "title": "", "text": "contrary, maintains that her protected activity dates back to as early as January 2004, when she wrote the letter to Chief Illige requesting permission to take leave on Sundays to attend church. PL’s Opp’n at 7-8. However, this Court agrees with Defendant in finding that a request for leave for purposes of religious observance, standing alone, does not constitute protected activity as defined by Title VII. See Def.’s Reply at 5. To be sure, Title VII’s anti-retaliation provision is not limited to administrative complaints, as it also protects a plaintiffs “opposition]” to “any practice made an unlawful employment practice” by the statute, see 42 U.S.C. § 2000e-3(a). However, for an exchange to constitute “protected activity,” the employee “must in some way allege unlawful discrimination.” Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.Cir.2006). Here, Plaintiffs January 2004 letter is no more than a “request” for greater flexibility in her Sunday schedule so that she “may exercise [her] religious observance.” PL’s Opp’n, Ex. B (Selected EEOC Record Exhibits), at 76. Although Plaintiff mentions the purpose of her leave — to attend church — she nowhere “opposes,” complains of, or even mentions Defendant’s prior refusals of this request; nor does she state anything to indicate that she would consider the failure to grant her leave request to be discriminatory. See id. While Plaintiff vaguely asserts in her counterstatement to Defendant’s facts that she “protested discriminatory treatment from her supervisors from January 2004 through September 2004,” PL’s Stmt. ¶ 2, because she fails to identify even a single example of her “protests],” the Court declines to find that any conduct prior to Plaintiffs May 2004 contact with an EEO counselor amounts to protected activity within the meaning of Title VII. See Dist. Intown Props. Ltd. P’ship v. Dist. of Columbia, 198 F.3d 874, 878 (D.C.Cir.1999) (“[T]he [C]ourt must assume the truth of all statements proffered by the non-movant except for conclusory allegations lacking any factual basis in the record.”) (emphasis added). Having resolved this legal dispute, the Court shall now address the factual disputes in connection with Plaintiffs protected activity. The crux of Defendant’s" }, { "docid": "5202134", "title": "", "text": "do not amount to an adverse employment action. To be sure, Defendants incorrectly argue that the law regarding what constitutes an adverse employment action is the same under discrimination claims and retaliation claims. The Supreme Court has held that a plaintiff claiming retaliation under Title VII “must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” White, 548 U.S. at 67-68, 126 S.Ct. 2405. “[T]he fact that actions are adverse for anti-retaliation claim purposes does not mean that they are so for disparate treatment purposes.” Jeter v. New York City Dept of Educ., No. 06-CV-3687, 2012 WL 2885140, at *11 (E.D.N.Y. Jul. 13, 2012) (citing Hicks, 593 F.3d at 165 (“[I]t is now clear that Title VII’s anti-discrimination and anti-retaliation provisions are not coterminous; anti-retaliation protection is broader.” (Internal quotation marks omitted))). Here, Ms. Seale alleges that Defendants retaliated against her for her complaint about Episcopo’s harassing conduct by switching her vehicle from a newer S.U.V. to an older model van and by moving her office to a location where she would no longer have access at all hours and on all days, thereby drastically changing the scheduling flexibility that she had experienced since she was hired. Without more, changes in work schedule or hours will not satisfy the pleading requirements for a Title VII retaliation claim. Although courts have found a change in work schedule to be sufficiently adverse for purposes of plausibly alleging a retaliation claim, there must be some extenuating circumstance, of which the plaintiff alleges her employer was aware, that transforms such a change from merely inconvenient to materially adverse. See Lundy v. Town of Brighton, 732 F.Supp.2d 263, 276 (W.D.N.Y.2010) (citing Washington v. Illinois Dep’t of Revenue, 420 F.3d 658, 662 (7th Cir.2005) (a change in work schedule requiring the mother of a disabled child to arrive at work two hours earlier is materially adverse for her, even though it would not have been for 99 percent of the" }, { "docid": "20303249", "title": "", "text": "11, 33 (D.D.C.2003)) (omission in original). Here, Ali merely asserts that each of the events that he alleges were discriminatory also contributed to a hostile work environment; but a plaintiff “cannot so easily bootstrap discriminatory claims into a hostile work environment claim.” Nurriddin v. Goldin, 382 F.Supp.2d 79, 108 (D.D.C.2005) (citing Lester, 290 F.Supp.2d at 33). Ali makes no effort to show that these events collectively created an abusive working environment severe or pervasive enough to alter the conditions of his employment. See Oncale, 523 U.S. at 81, 118 S.Ct. 998. Thus, his discrimination claim cannot proceed under either a discrete disparate impact theory or a hostile' work environment theory, and summary judgment for the District on this claim is required. 2. Retaliation for Opposing Religious Discrimination In addition to banning discrimination, Title VII also prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under” Title VII. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must show that: (i) she engaged in protected activity; (ii) she suffered a materially adverse action by her employer; and (iii) a causal connection existed between the two. Wiley v. Glassman, 511 F.3d 151, 155 (D.C.Cir.2007) (citing Brown, 199 F.3d at 452). As above, the District challenges Ali’s prima facie case on the sole ground that he did not suffer a judicially cognizable adverse action. The scope of the adverse action requirement is broader in retaliation cases than in discrimination cases. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63-64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). A retaliation plaintiff may prevail by showing materially adverse action, which is “not limited to discriminatory actions that affect the terms and conditions of employment,” id. at 64, 126 S.Ct. 2405, but rather reaches any conduct that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at" }, { "docid": "18242258", "title": "", "text": "plaintiff merely acknowledge the receipt of the memorandum does not constitute an adverse employment action, and this claim will be dismissed. B. Retaliation “The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Burlington, 548 U.S. at 67, 126 S.Ct. 2405. To prove a retaliation claim under Title VII, a plaintiff “generally must establish that he or she suffered (i) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C.Cir.2008). For a retaliation claim, the concept of adverse action is broader than in the discrimination context since it “can encompass harms unrelated to employment or the workplace ‘so long as a reasonable employee would have found the challenged action materially adverse.’ ” Rattigan v. Holder, 604 F.Supp.2d 33, 46 (D.D.C.2009) (quoting Baloch, 550 F.3d at 1198 n. 4 (internal citation omitted)). To be materially adverse, the action must be one that “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Burlington, 548 U.S. at 68, 126 S.Ct. 2405 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)). 1. Failure to Investigate or Discipline Other Employees Even under the more lenient standard set forth for retaliation claims in Burlington, the harm complained of by plaintiff is simply too attenuated to be actionable under Title VII. While an employer’s failure to investigate or punish another employee could have an impact on the employee who is the subject of a complaint, the critical inquiry is not whether the targets of plaintiffs complaints were punished, but whether plaintiff was harmed. See Burlington, 548 U.S. at 67, 126 S.Ct. 2405 (“[T]he anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”). Even assuming arguendo that plaintiff suffered emotional distress as a result of the disparaging emails and remarks from her co-workers and litigation opponents (Compl. ¶¶ 65, 70), whether plaintiff suffered objective harm as a result of defendant’s alleged failure to investigate these incidents or" }, { "docid": "20154350", "title": "", "text": "discrimination. 2. Retaliation As to Ali’s retaliation claims, the Court need not resolve the issue of which pleading requirements apply because Ali’s allegations are sufficient to survive defendants’ motion to dismiss even if Sparrow does not control. To successfully make out a claim of unlawful retaliation, an employee must ultimately demonstrate that “she engaged in protected activity, as a consequence of which her employer took a materially adverse action against her.” Taylor v. Solis, 571 F.3d 1313, 1320 (D.C.Cir.2009) (quoting Weber v. Battista, 494 F.3d 179, 184 (D.C.Cir.2007)) (internal quotation marks omitted). Ah has alleged that he filed an internal complaint, and defendants do not dispute that he engaged in protected activity. They argue only that Ali has not faced a materially adverse action. That argument fails. An action is materially adverse for purposes of a retaliation claim if it “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Taylor, 571 F.3d at 1320 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)) (internal quotation marks omitted); see also Rattigan v. Holder, 604 F.Supp.2d 33, 52 (D.D.C.2009) (noting that “[ujnder Burlington, the touchstone for ‘material adversity’ is deterrence” because “[the] function of [the] anti-retaliation provision is to ‘prohibit[] employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers’ ” (quoting Burlington, 548 U.S. at 68, 126 S.Ct. 2405) (emphasis in original)). Several courts have concluded that threats can constitute retaliatory action. See, e.g., Rattigan, 604 F.Supp.2d at 52-53 (“[W]hether an action is ‘materially adverse’ is determined by whether it holds a deterrent prospect of harm, and not by whether the harm comes to pass or whether any effects are felt in the present.” (emphasis in original)); Billings v. Town of Grafton, 515 F.3d 39, 54-55 (1st Cir.2008) (relying on Burlington in holding that where an employee knows that by bringing a discrimination charge, “she risks a formal investigation and reprimand — including a threat of ‘further, more serious discipline,’ ” she might be" }, { "docid": "20411291", "title": "", "text": "(which may be enough with the prima facie case to infer unlawful retaliation), and any properly considered evidence supporting the employer’s case.” Williams v. Dodaro, 806 F.Supp.2d 246, 256-57 (D.D.C. 2011); see also Jones, 557 F.3d at 679; Hill v. Kempthorne, 577 F.Supp.2d 58, 64 (D.D.C.2008). Plaintiff claims that she told defendant’s ADR team that her supervisor “show[ed] preferential treatment to two of her coworkers that were female and Caucasian,” Am. Compl. ¶ 17, and that the negative treatment she received could be “because of her race (African American) or her color (fair-skinned) or [her supervisor] simply did not like her,” Am. Compl. ¶ 21. She asserts that she was then fired in retaliation for her “protective disclosures.” Pl.’s Opp’n at 10. Defendant, however, offers an account of several legitimate, non-retaliatory reasons for terminating plaintiff: In sum, [p]laintiff had difficulties in communicating effectively with her coworkers and grantees. She failed to respond to customer inquiries in a timely fashion. She struggled with her interpersonal skills with her supervisor and had a history of taking unscheduled leave without complying with appropriate leave procedures. Def.’s Mot. at 28-29. The Court, then, looks to the totality of the evidence in the record, including the strength of the prima facie case, to determine whether defendant’s asserted justification for plaintiffs termination merely disguises retaliation. Williams, 806 F.Supp.2d at 256-57; Jones, 557 F.3d at 679. Here, Williams’ prima facie case is weak. Although her termination qualifies as an adverse personnel action, the other aspects of the prima facie case — whether plaintiff engaged in protected activity and the presence of a sufficient causal link — are absent. Defendant argues that plaintiff cannot establish a claim of retaliation since “ADR is not protected activity under Title VII.” Def.’s Mot. at 23. However, even informal accusations of discrimination can be protected activity under the law. See Lemmons v. Georgetown Univ. Hosp., 431 F.Supp.2d 76, 93 n. 18 (D.D.C.2006); Rattigan v. Gonzales, 503 F.Supp.2d 56, 77 n. 7 (D.D.C.2007) (“[OJpposition to an unlawful employment practice qualifies as protected activity even if it may have occurred outside of the EEO" }, { "docid": "10682274", "title": "", "text": "itself rise to the level of a materially adverse action necessary to sustain a claim of unlawful retaliation. The Circuit also held that sick leave restrictions did not constitute a “materially adverse” action where the restrictions had never actually affected the plaintiff, id. at 1198, nor did a proposed suspension that was never imposed, id. at 1199. 1. April 2011 — Yates’ Request Ms. Newton argues that she suffered illegal retaliation when her supervisor, Ms. Yates, allegedly acting on behalf of the lawyer representing her employer in one of her pending cases, requested that she submit two samples of her work for review. Compl. ¶¶ 14-17. She has not alleged any harm or change to her employ ment status as a result of this request, but rather appears to suggest that the request itself constitutes a materially adverse ae-. tion. A supervisor’s request to examine the workproduct of an employee, without more, cannot itself constitute a “materially adverse” action — if it did, any manager’s authority' to review a subordinate’s work-product would essentially disappear once the employee engaged in a protected activity. See Zelaya v. UNICCO Serv. Co., 733 F.Supp.2d 121, 131 (D.D.C.2010) (concluding that mere monitoring did not constitute a materially adverse action).' Here, the nature of the request makes it an especially unlikely candidate for material adversity: Ms. Yates’ request allowed Ms. Newton to choose which of her completed cases to present for review. This kind of request would not dissuade a reasonable worker from making or supporting a charge of discrimination and thus may not form the basis of a retaliation claim. See White, 548 U.S. at 70, 126 S.Ct. 2405. And, even if there were some potential for the request to lead towards some actionable harm, Ms. Newton has not alleged that she suffered any such harm — or any other consequences from the request. Cf. Baloch, 550 F.3d at 1198-99. Accordingly, this portion of her retaliation claim fails for want of material adversity. 2. June 2011 — Maltbie Reference of Disgruntled Employees Ms. Newton argues that she suffered illegal retaliation when her interim supervisor, Ms." }, { "docid": "6936060", "title": "", "text": "Engaged in Activity Protected by Title VII. Regarding the first element of Plaintiffs prima facie case — that Plaintiff engaged in statutorily protected activity— the parties do not dispute that Plaintiff complained about Defendant’s alleged religious discrimination to an EEO Counselor in May 2004 and that she filed her formal EEO complaint concerning the same on September 3, 2004. Def.’s Stmt. ¶¶2-3. While the Defendant half-heartedly argues that the Court should consider the September 2004 date as the date on which Plaintiff commenced her protected activity, see Def.’s Mem. at 12, such argument holds no water, as “[i]t is well settled that Title VII protects informal, as well as formal, complaints of discrimination.” Richardson v. Gutierrez, 477 F.Supp.2d 22, 27 (D.D.C. 2007) (finding that employee engaged in “protected activity” as required to establish prima facie case of retaliation under Title VII when she first contacted EEO Counselor to complain of workplace discrimination, and again when she declined the agency’s offer of resolution and expressed her intention to proceed with a formal complaint). Plaintiff, to the contrary, maintains that her protected activity dates back to as early as January 2004, when she wrote the letter to Chief Illige requesting permission to take leave on Sundays to attend church. PL’s Opp’n at 7-8. However, this Court agrees with Defendant in finding that a request for leave for purposes of religious observance, standing alone, does not constitute protected activity as defined by Title VII. See Def.’s Reply at 5. To be sure, Title VII’s anti-retaliation provision is not limited to administrative complaints, as it also protects a plaintiffs “opposition]” to “any practice made an unlawful employment practice” by the statute, see 42 U.S.C. § 2000e-3(a). However, for an exchange to constitute “protected activity,” the employee “must in some way allege unlawful discrimination.” Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.Cir.2006). Here, Plaintiffs January 2004 letter is no more than a “request” for greater flexibility in her Sunday schedule so that she “may exercise [her] religious observance.” PL’s Opp’n, Ex. B (Selected EEOC Record Exhibits), at 76. Although Plaintiff mentions the purpose of her" }, { "docid": "17042552", "title": "", "text": "F.3d 422, 425 (D.C.Cir.2003) (quoting 29 C.F.R. § 1614.105(a)(2)). The time may in some circumstances be tolled, moreover, even when a plaintiff was aware of the adverse action in question but not yet aware of the discriminatory motive behind it. See Miller, 594 F.3d at 12. However, “the plaintiff has a responsibility, when possible, to further investigate a personnel action in order to determine whether the action was discriminatory.” Id. No facts were kept secret from Plaintiff in this case. He had contemporaneous knowledge of the two incidents in question; he also knew he had engaged in protected activity. This suffices to give rise to a reasonable suspicion of retaliation or trigger the duty to investigate. Indeed, Plaintiffs EEO Complaint states that he had “complained often” about the allegedly retaliatory incidents from as early as Spring 2009. See Mot., Exh. 1 (EEO Complaint). Plaintiff wrote the Director of OPM in July, Compl. ¶ 86, and wrote an email accusing Anderson of “illegal” activities that created a hostile work environment. See Blatchford Decl., ¶ 9. Plaintiffs self-serving declaration cannot defeat the undisputed evidence showing that he clearly considered the Docket Clerk and telecommuting incidents to be unlawful well before December 2009. Because Defendants have demonstrated that Plaintiff failed to exhaust his retaliation claims based on the two Spring 2009 incidents, therefore, the Court will grant Defendants’ Motion for Summary Judgment with respect to those claims. 2. Materially Adverse Employment Actions Although Plaintiff exhausted his administrative remedies with regard to the remaining three allegedly retaliatory incidents, none of them constitutes a materially adverse employment action. “[A] ‘materially adverse’ action for purposes of a retaliation claim is one that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ” Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C.Cir.2010) (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)); see also Mogenhan v. Napolitano, 613 F.3d 1162, 1166 (D.C.Cir.2010) (noting that D.C. Circuit has “applied the Burlington Northern standard to retaliation claims under the Rehabilitation Act as well" } ]

[ { "docid": "22555604", "title": "", "text": "United States v. National City Lines, 334 U. S. 573; United States v. Zazove, 334 U. S. 602; United States v. Congress of Industrial Organizations, 335 U. S. 106; Shapiro v. United States, 335 U. S. 1; Ahrens v. Clark, 335 U. S. 188. Appendix B OPINIONS DURING THE PAST DECADE RESTING UPON THE RULE THAT THE REENACTMENT OP A STATUTE CARRIES GLOSS OP CONSTRUCTION PLACED UPON IT BY THIS COURT Electric Storage Battery Co. v. Shimadzu, 307 U. S. 5, 14; Rasquin v. Humphreys, 308 U. S. 54; Apex Hosiery Co. v. Leader, 310 U. S. 469; Brooks v. Dewar, 313 U. S. 354; Helvering v. Griffiths, 318 U. S. 371; Walling v. Halliburton Oil Well Cementing Co., 331 U. S. 17; Commissioner v. Munter, 331 U. S. 210; Francis v. Southern Pacific Co., 333 U. S. 445; United States v. South Buffalo R. Co., 333 U. S. 771; cf. Federal Communications Comm’n v. Columbia Broadcasting System of California, 311 U. S. 132, 132-133; see Mr. Justice Black dissenting in Washingtonian Publishing Co. v. Pearson, 306 U. S. 30, 42; see Mr. Chief Justice Stone dissenting in Girouard v. United States, 328 U. S. 61, 70. [This is also a dissent from Estate of Spiegel v. Commissioner, post, p. 701.] The Court of Appeals for the Seventh Circuit did not determine whether a grandchild who survived his parent also had to survive the settlor-decedent to have the right to his share of the principal go to his estate. The grant of certiorari was “limited to the question of whether the entire value of the corpus of the trust at the time of decedent’s death should have been included in the decedent’s gross estate.” Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U. S. 108, 110. The same is true in Commissioner v. Estate of Field, 324 U. S. 113, 114. In No. 5, Commissioner v. Church, it is even clearer that events subsequent to the creation of the trust removed whatever possibility of reverter had previously existed even if one assumes that when the trust was created the settlor would regain" } ]

[ { "docid": "3214446", "title": "", "text": "This reading would require the court to construe silence as an affirmative repeal of Paragraph 24A However, a basic canon of statutory construction requires that we presume Congress does not silently abrogate existing law. The Supreme Court has “frequently cautioned that ‘it is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law.’ ” NLRB. v. Plasterers’ Local Union No. 79, Operative Plasterers’ & Cement Masons’ Int’l Ass’n, AFL-CIO, 404 U.S. 116, 129-30, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971) (alteration omitted) (quoting Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 90 L.Ed. 1084 (1946)). When asked to find that Congress has overruled a binding agreement incorporated into a judicial decree — just as when asked to find that Congress has overruled an earlier statute — we should “avoid the ‘treacherous’ course of inferring from Congress’s silence any affirmative intentions.” United States v. Ledlin (In re Mark Anthony Const., Inc.), 886 F.2d 1101, 1107 (9th Cir. 1989). The government’s argument asks us to ignore our obligation to interpret statutes with the assumption that “Congress is aware of the legal context in which it is legislating.” Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 683-84 (9th Cir. 2006); see also Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) (“We assume that Congress is aware of existing law when it passes legislation”); United States v. Le-Coe, 936 F.2d 398, 403 (9th Cir. 1991) (“Congress is, of course, presumed to know existing law pertinent to any new legislation it enacts.”) (citing Native Village of Venetie v. Alaska, 918 F.2d 797, 803 (9th Cir. 1990)). At the time it enacted the HSA and TVPRA, Congress was on notice with respect to the government’s obligations under the nationwide Flores Settlement and resulting consent decree, which had governed the treatment of minors since 1997. Congress therefore had the opportunity to address, and to explicitly modify if it wished to do so, any provisions of the Settlement, including the bond-hearing requirement under Paragraph 24A. Yet, neither statute so" }, { "docid": "11816012", "title": "", "text": "They are not relevant to the present argument. . Withenbury v. U. S., 1866, 5 Wall. 819, 18 L.Ed. 613; Hill v. Chicago & Evanston R. R. Co., 1891, 140 U.S. 52, 11 S. Ct. 690, 35 L.Ed. 331; United States v. River Rouge Improvement Co., 1926, 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339. Compare Dickinson v. Petroleum Conversion Corp., 1950, 338 U.S. 507, 70 S.Ct. 322, 94 L.Ed. 299. . The terminology now used in Rule 13 of the Federal Rules of Civil Procedure, 28 U.S.C., to describe a situation long familiar in pleading. . General Electric Co. v. Marvel Rare Metals Co., 1932, 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408; Winters v. Ethell, 1889, 132 U.S. 207, 10 S.Ct. 56, 33 L.Ed. 339; Ayres v. Carver, 1854, 17 How. 591, 15 L.Ed. 179. And see references to this antecedent doctrine in cases cited in note 10, infra. . Nachtman v. Crucible Steel Co., 3 Cir., 1948, 165 F.2d 997; Eastern Transport Co. v. U. S., 2 Cir., 1947, 159 F.2d 349; Toomey v. Toomey, 1945, 80 U.S. App.D.C. 77, 149 F.2d 19. Accord: Coffman v. Federal Laboratories Inc., 3 Cir., 1948, 171 F.2d 94. Cf. Cohen v. Globe Indemnity Co., 3 Cir., 1941, 120 F.2d 791. . See Moore, Judicial Code Commentary (1949) 510-11. . E. g., Collins v. Miller, 1920, 252 U.S. 364, 370, 40 S.Ct. 347, 64 L.Ed. 616. . Reeves v. Beardall, 1942, 316 U.S. 283, 285, 62 S.Ct. 1035, 1087, 86 L.Ed. 1478. . Lyman v. Remington Rand, Inc., 2 Cir., 1951, 188 F.2d 806; David v. District of Columbia, 1950, 88 U.S.App.D.C. 92, 187 F.2d 204; Winsor v. Daumit, 7 Cir., 1950, 179 F.2d 475. . 48 Stat. 1084 (1934). . See Sibbach v. Wilson & Co., 1941, 312 U.S. 1, 10, 61 S.Ct. 422, 424, 85 L.Ed. 479; Cf., Mississippi Publishing Corp. v. Murphree, 1946, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185; Meek v. Centre County Banking Co., 1925, 268 U.S. 426, 45 S.Ct. 560, 69 L.Ed. 1028. . Cf., Davidson Bros. Marble Co. v. U." }, { "docid": "10361148", "title": "", "text": "The Variousness of “Federal Law”: Competence and Discretion in the Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797 (1957); Monaghan, The Supreme Court, 1974 Term — Foreword: Constitutional Common Law, 89 Harv.L. Rev. 1 (1975); Panel Discussion, The Future of a Federal Common Law, 17 Ala.L.Rev. 10 (1964); Note, The Federal Common Law, 82 Harv.L.Rev. 1512 (1969); Note, Rules of Decision in Nondiversity Suits, 69 Yale L.J. 1428 (1960); Note, Federal Common Law and Article III: A Jurisdictional Approach to Erie, 74 Yale L.J. 325 (1964); Comment, The Invalid Growth of the New Federal Common Law Dictates the Need for a Second Erie, 9 Hous.L.Rev. 329 (1971). . See, e. g., Priebe & Sons, Inc. v. United States, 1947, 332 U.S. 407, 68 S.Ct. 123, 92 L.Ed. 32; United States v. County of Allegheny, 1944, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209; Clearfield Trust Co. v. United States, 1943, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838. See generally Friendly, supra note 7, at 408-11. . See, e. g., Textile Workers v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. . See, e. g. Huber Banking Co. v. Stroehmann Bros. Co., 2 Cir. 1958, 252 F.2d 945, 952-53, cert, denied, 1958, 358 U.S. 829, 79 S.Ct. 50, 3 L.Ed.2d 69; Dad’s Root Beer Co. v. Doc’s Beverages, Inc., 2 Cir. 1951, 193 F.2d 77; Stauffer v. Exley, 9 Cir. 1950, 184 F.2d 962. . See, e. g., Francis v. Southern Pacific Co., 1948, 333 U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798. . In the sequel to the Supreme Court’s Illinois v. Milwaukee case this Court stated the elements of such a claim: “The elements of a claim based on the federal common law of nuisance are simply that the defendant is carrying on an activity that is causing an injury or significant threat of injury to some cognizable interest of the complainant.” Illinois v. Milwaukee, 7 Cir. 1979, 599 F.2d 151, 165. For a discussion of the federal common law of nuisance, see Campbell, Illinois v. City of Milwaukee:" }, { "docid": "13273718", "title": "", "text": "L.Ed. 1234. And see, North American Co. v. Securities & Exchange Commission, 1946, 327 U.S. 686, 705-706, 66 S.Ct. 785, 90 L.Ed. 945. . Addyston Pipe & Steel Co. v. United States, 1899, 175 U.S. 211, 228, 20 S.Ct. 96, 102, 44 L.Ed. 136. . See, Great Atlantic & Steel Co. v. Federal Trade Commission, 3 Cir., 1939, 106 F.2d 667, 678. . United States v. Carolene Products Co., 1938, 304 U.S. 144, 147, 58 S.Ct. 778, 82 L.Ed. 1234. . National Labor Relations Board v. Jones & Laughlin Corp., 1947, 301 U.S. 1, 36-37, 57 S.Ct. 615, 81 L.Ed. 893; United States v. South-Eastern Underwriters’ Ass’n, 1944, 322 U.S. 533, 558— 559, 64 S.Ct. 1162, 88 L.Ed. 1440. . Mulford v. Smith, 1939, 307 U.S. 38, 48, 59 S.Ct. 648, 83 L.Ed. 1092; Prudential Insurance Co. v. Benjamin, 1946, 328 U.S. 408, 423-424, 66 S.Ct. 1142, 90 L.Ed. 1342; Cleveland v. United States, 1946, 329 U.S. 14, 19, 67 S.Ct. 13, 91 L. Ed. 12. And see the writer’s opinion in United States v. Edwards, D.C.Cal., 1926, 14 F.Supp. 384, 388-391. . Lanzetta v. State of New Jersey, 1939, 306 U.S. 451, 454, 59 S.Ct. 618, 619, 83 L.Ed. 888. For earlier enunciations of the same principles, see, International Harvester Co. of America v. Commonwealth of Kentucky, 1914, 234 U.S. 216, 222-224, 34 S.Ct. 853, 58 L.Ed. 1284; Collins v. Commonwealth of Kentucky, 1914, 234 U.S. 634, 637-638, 34 S.Ct. 924, 58 L.Ed. 1510; Connally v. General Construction Co., 1926, 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322. And for the latest declaration on the subject, see, Jordan v. De George, 1951, 341 U.S. 223, 71 S.Ct. 703. . Note, Due Process Requirements of Definiteness in Statutes, 1948, 62 Harvard Law Review, p. 77. And see cases cited in Note 14, supra. . United States v. Petrillo, 1947, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. And see, Winters v. People of State of New York, 1948, 333 U.S. 507, 517-518, 68 S.Ct. 665, 92 L.Ed. 840; Musser v. State of Utah, 1948, 333" }, { "docid": "11895519", "title": "", "text": "479 F.2d 489, 501 (6th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973). Defendants compare the back injuries of Barnes to several cases involving back injuries and the leg injuries of Darle and Mrs. Backs to cases involving leg injuries. However, a number of these cases are ten years old or more, did not involve plaintiffs with comparable occupations and earning capacities, or apparently did not involve permanent injuries like those of the plaintiffs in this case. The District Court stated what factors he considered in making the awards and supported his awards by findings with respect to the plaintiff’s conditions and the future pain and limitations they are likely to suffer. Although the awards may be high, they do not shock this Court’s conscience. Considering the present deflated value of the dollar and that personal injury damages are unliquidated without any fixed measure of mathematical certainty, see Kroger v. Rawlings, 251 F.2d 943, 945 (6th Cir. 1958), these awards are not excessive. The District Court’s judgments with respect to all plaintiffs save plaintiff Thompson are affirmed. The judgment in favor of plaintiff Thompson is reversed. . If the transport were wholly intrastate, then federal law would not apply. State law would be controlling. See N. Y. Central R. Co. v. Mohney, 252 U.S. 152, 40 S.Ct. 287, 64 L.Ed. 502 (1920); Alderman v. Baltimore & Ohio R. Co., 113 F.Supp. 881 (S.D.W.Va.1953); Olsen v. Draper, 112 F.Supp. 859 (E.D.N.Y.1953). . The dissent would also not have applied federal law but would have applied state law. State law here would not avail the plaintiff since Tennessee has recognized the validity of waiver of liability provisions. See Empress Health & Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn.1973); Louisville & Nashville R. Co. v. Hadley, 11 Tenn.App. 642, 646 (1930). . As the dissent in the present case notes, the Thompson decision is close to 70 years old. However, the Supreme Court had the opportunity to change its rule when it reexamined the issue in 1949 in Francis, but it did not do so. We" }, { "docid": "7366710", "title": "", "text": "to registration. That construction had been to the effect that for registration purposes, persons here under temporary visas were “residing in the United States.” 39 Op.Atty.Gen. 504 (Oct. 11, 1940). Without examining into the merits of the residence question, the court in the Benzian case deferred to the rule of statutory construction that Congressional reenactment of an administratively interpreted statute evidences Congressional approval of that interpretation, and extended the rule to use of the old phrase in a new context. That rule, however, had its origin in situations where a statutory provision had been interpreted by an agency over a long period of years and Congress then re enacted the same provision. In contrast, as already indicated, we are, confronted with a transposition of a phrase from one context in the statute to another, with no direct evidence whatsoever that Congress was aware of the Attorney General’s construction of the phrase in the first context. As the Supreme Court said in Girouard v. United States, 1946, 328 U.S. 61, 69-70, 66 S.Ct. 826, 830, 90 L.Ed. 1084, 1090, where it overruled its own construction of a statute which had come to the attention of Congress several times and the construed portion had been reenacted, “It is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law. We do not think under .the circumstances of this legislative history that we can properly place on the shoulders of Congress the burden of the Court’s own error. The history of the 1940 Act is at most equivocal. It contains no affirmative recognition of the rule of [these] * * * cases. The silence of Congress and its inaction are as consistent with a desire to leave the problem fluid as they are with an adoption by silence of the rule of those cases.” See concurring opinion of Justice Rutledge in Cleveland v. United States, 1946, 329 U.S. 14, 22-24, 67 S.Ct. 13, 17-18, 91 L.Ed. 12, 18-19. Congressional reenactment without express consideration or reference cannot give controlling weight to an originally erroneous administrative interpretation. The Attorney" }, { "docid": "9615093", "title": "", "text": "holding in Kansas City Southern R. Co. v. Van Zant, 260 U.S. 459, 43 S.Ct. 176, 67 L.Ed. 348, decided in 1923, and Francis v. Southern Pacific Co., 333 U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798, decided in 1948. A statute adopted from another state will be presumed to have been adopted with the construction placed upon it prior to its adoption by the courts of the state from which it was adopted. The pass was an interstate pass. Whether the validity of the condition in the pass is to be determined by Federal law, see New York Cent. R. R. Co. v. Mohney, 252 U.S. 152, 40 S.Ct. 287, 64 L.Ed. 502, 9 A.L.R. 496, or by the law of Utah, we bold that such provisions are valid. Williams v. Oregon Short Line R. Co., 18 Utah 210, 54 P. 991, 72 Am.St.Rep. 777; Houtz v. Union Pacific R. Co., 33 Utah 175, 93 P. 439, 17, L.R.A.,N.S., 628, and Saunders v. Southern Pacific Co., 13 Utah 275, 44 P. 932, are clearly distinguishable. In each of these cases, the court held that under existing facts the injured person was a passenger for hire and was not traveling on a free pass. The contention that the pass had not been honored by the Railroad Company is without merit. The pass was signed by a duly authorized officer of the Railroad Company. It had been delivered to Ketch-urn and had been signed and accepted by her; and she was using the transportation facilities of the Railroad Company by virtue of the pass at the time of the accident. The provisions of the pass were then applicable. Affirmed. Hereinafter called the Railroad Company. Aschenbrenner v. United States Fidelity & Guaranty Co., 292 U.S. 80, 83, 54 S.Ct. 590, 78 L.Ed. 1137; Kansas City Southern R. Co. v. Willsie, 8 Cir., 224 F. 908, 909-910, and cases there cited; Davis v. Olson, 8 Cir., 298 F. 921, 923; Riley v. Vallejo Ferry Co., D.C.Cal., 173 F. 331, 333; Pere Marquette R. Co. v. Strange, 171 Ind. 100, 84 N.E. 819, 821," }, { "docid": "14719146", "title": "", "text": "F.2d 257 (6th Cir.2d 1968) in which we affirmed an order of the District Court granting summary judgment in favor of the Railroad. Other pertinent Ohio eases are: North v. Pennsylvania R. Co., 9 Ohio St.2d 169, 224 N.E.2d 757 (1967) (summary judgment); Boles v. Baltimore & Ohio Railroad Co., 168 Ohio St. 551, 156 N.E.2d 735 (1959); Woodworth v. New York Central R. Co., 149 Ohio St. 543, 80 N.E.2d 142 (1948); Patton v. Pennsylvania R. Co., 136 Ohio St. 159, 24 N.E.2d 597 (1939); Pennsylvania R. Co. v. Rusynik, 117 Ohio St. 530, 159 N.E. 826, 56 A.L.R. 538 (1927); Toledo Terminal R. Co. v. Hughes, 115 Ohio St. 562, 154 N.E. 916 (1926); New York, C. & St. L. Railroad Co. v. Kistler, 66 Ohio St. 326, 64 N.E. 130 (1902). Other decisions of our Court are: Newcomb v. Baltimore & Ohio Railroad Co., 352 F.2d 406 (6th Cir. 1965); Anderer v. Baltimore & Ohio R. Co., 300 F.2d 14 (6th Cir. 1962); Carter v. Pennsylvania R. Co., 172 F.2d 521 (6th Cir. 1949); Detroit, Toledo and Ironton R. Co. v. Yeley, 165 F.2d 375 (6th Cir. 1947); Baltimore & Ohio Railroad Co. v. Joseph, 112 F.2d 518 (6th Cir. 1940); cert. den., 312 U.S. 682, 61 S.Ct. 551, 85 L.Ed. 1121, rehearing den. 312 U.S. 714, 61 S.Ct. 710, 85 L.Ed. 1144. In Ohio, a minor is liable for his torts. Wery v. Seff, 136 Ohio St. 307, 25 N.E.2d 692 (1940). A minor may be negligent, contributorily negligent, and also assume the risk of his injury as a matter of law. The rule is stated in En-glehardt v. Phillips, 136 Ohio St. 73, 23 N.E.2d 829 (1939) where the Court held that a boy between eleven and twelve years of age, who was a fairly good swimmer and diver, assumed the risk of his injury as a matter of law. Judge Hart in writing the opinion of the Court said: “While children are not chargeable with the same amount of care as persons of mature years, they are required to exercise ordinary care to avoid" }, { "docid": "19408599", "title": "", "text": "(1987) (SCALIA, J., dissenting)); see also Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 90 L.Ed. 1084 (1946) (\"It is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law\"); Helvering v. Hallock, 309 U.S. 106, 121, 60 S.Ct. 444, 84 L.Ed. 604 (1940) (\"[W]e walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle\"). There are many reasons Congress might not act on a decision like Kiowa, and most of them have nothing at all to do with Congress' desire to preserve the decision. See Johnson, 480 U.S., at 672, 107 S.Ct. 1442 (SCALIA, J., dissenting) (listing various kinds of legislative inertia, including an \"inability to agree upon how to alter the status quo\" and \"indifference to the status quo\"). Even assuming the general validity of arguments from legislative inaction, they are a poor fit in this common-law context. Such arguments are typically based on the premise that the failure of later Congresses to reject a judicial decision interpreting a statute says something about what Congress understands the statute to mean. See, e.g., id., at 629, n. 7, 107 S.Ct. 1442 (majority opinion). But it is not clear why Congress' unenacted \"opinion\" has any relevance to determining the correctness of a decision about a doctrine created and shaped by this Court. Giving dispositive weight to congressional silence regarding a common-law decision of this Court effectively codifies that decision based only on Congress' failure to address it. This approach is at odds with our Constitution's requirements for enacting law. Cf. Patterson,supra, at 175, n. 1, 109 S.Ct. 2363 (\"Congress may legislate ... only through the passage of a bill which is approved by both Houses and signed by the President. Congressional inaction cannot amend a duly enacted statute\" (citation omitted)). It is also the direct opposite of this Court's usual approach in common-law cases, where we have made clear that, \"in the absence of an applicable Act of Congress, federal courts must fashion the governing rules.\" National Metropolitan Bank, 323 U.S., at" }, { "docid": "9337262", "title": "", "text": "Cardozo, The Nature of the Judicial Process, 146-149; Wigmore, loe. cit. See Burnet v. Coronada Oil & Gas Co., 285 U.S. 393, 406, note 1, 52 S.Ct. 443, 447, 76 L.Ed. 815, for a list of cases in -Much the Supreme Court had-previously overruled its prior decisions. There’ have been other sneh cases, since Erie R. Co. v. Tompkins; among them are Nye v. United States, 1941, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172; California v. Thompson, 1941, 313 U.S. 109, 116, 61 S.Ct. 930, 85 L.Ed. 1219; Olsen v. Nebraska, 1941, 313 U.S. 236, 237, 61 S. Ct. 862, 85 L.Ed. 1305, 133 A.L.R. 1500. As the Chapter X proceeding never went beyond the filing of the petition, presumably no notice was given to certificate-holders. The trustee went so far as to maintain in its brief that if the Chapter X proceeding continued, it alone, and ho certificate-holder, could vote on a plan proposed therein. A brief, amicus curiae, was filed' by trustees appointed in other state court proceedings. Of course, they too had such an interest in the continuance of their emoluments. Mr. Justice Reed in Erie R. Co. v. Tompkins, 304 U.S. 64, 92, 58 S.Ct. 817, 828, 82 L.Ed. 1188, 114 A.L.R. 1487. Hertz v. Woodman, 218 U.S. 205, 212, 30 S.Ct. 621, 622, 54 L.Ed. 1001. Sears, Roebuck & Co. v. 9 Ave.-31 St. Corp., 274 N.Y. 388, 400, 9 N.E.2d 20, 26. Leavitt v. Morrow, 6 Ohio St, 71, 78, 67 Am.Dec. 334. Allen, Law in the Making (1927) 188. On the all-common-stock plan, see Matter of Flour Mills of America, Inc., 7 S.E.C. 1, 27. In the instant case, such a plan might, in the alternative, provide for a relatively small amount of new debt, and all the debt obligations and stock might be distributed among the certificate-holders. There are other factors which may render a plan not “feasible.” For instance, a plan may call for the issuance of preferred stock with cumulative dividends which cannot be expected to be earned. On feasibility generally, see Note (1941), 18 New York Un." }, { "docid": "12725854", "title": "", "text": "the scope of § 1322(e) to interest on arrears exclusively. It is clear that the 1994 amendment was intended to overrule Rake v. Wade. However, Congress did not go so far as to say that § 1322(e) was intended to accomplish this purpose alone. As a result, Homeside’s argument prevails only if congressional silence as to matters beyond the scope of Rake manifests an intent to limit § 1322(e) exclusively to the overruling of Rake. The Supreme Court has long held that silence is rarely, if ever, an effective barometer of legislative intent. Zuber v. Allen, 396 U.S. 168, 185, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969) (“Legislative silence is a poor beacon to follow in discerning the proper statutory route.”); Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 90 L.Ed. 1084 (1946) (“It is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law.”). On the other hand, “[t]he language of the statutes that Congress enacts provides ‘the most reliable evidence of its intent.’ ” Holloway v. United States, 526 U.S. 1, 6, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999) (quoting United States v. Turkette, 452 U.S. 576, 593, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)). See United States v. Locke, 471 U.S. 84, 95-96, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985) (“ ‘Going behind the plain language of a statute in search of a possibly contrary congressional intent is “a step to be taken cautiously” even under the best of circumstances.’ ” American Tobacco Co. v. Patterson, 456 U.S. 63, 75, 102 S.Ct. 1534, 1540, 71 L.Ed.2d 748 (1982) (quoting Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124 (1977)). When even after taking this step nothing in the legislative history remotely suggests a congressional in tent contrary to Congress’ chosen words ... any further steps take the courts out of the realm of interpretation and place them in the domain of legislation.”). In light of the foregoing considerations of the Supreme Court, we refuse to construe congressional silence regarding attorney’s" }, { "docid": "23003668", "title": "", "text": "475, affirmed on other grounds, 1948, 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403, with President & Directors of Manhattan Co. v. Kelby, 2 Cir., 1945, 147 F.2d 465, certiorari denied 1945, 324 U.S. 866, 65 S.Ct. 916, 89 L.Ed. 1422; see also Powers v. New York Central R. R. Co., 2 Cir., 1958, 251 F.2d 813, 76 A.L.R.2d 1207; Murphy v. Lehigh Valley R. R. Co., 2 Cir., 1946, 158 F.2d 481; Louisiana & Arkansas R. R. Co. v. Pratt, supra, note 10; Cleveland Tankers v. Tierney, supra, note 10. . The Employers’ Liability Act of June 11, 1906, c. 3073, 34 Stat. 232, declared unconstitutional in the Employers’ Liability Cases (Howard v. Illinois Cent. R. Co.), 1908, 207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297, was re-enacted with slight alteration to meet constitutional objections, April 22, 1908, c. 149, 35 Stat. 65. . We do not reach the question, unresolved in this circuit, as to whether interest qua damages may be given upon any portion of the recovery in a Jones Act suit brought in admiralty. See discussion in Moore-McCormack Lines, Inc., v. Amirault, 1 Cir., 1953, 202 F.2d 893. . Cf. Frasier v. Public Service Interstate Transport Co., 2 Cir., 1958, 254 F.2d 182. See also Powers v. New York Central Railroad Co., 2 Cir., 1958, 251 F.2d 813, 819, 76 A.L.R.2d 1207 [dissent]; 64 Yale L.J. 1019 (1955); Restatement, Torts, § 913(2). . That an award of interest is necessary to fully indemnify a plaintiff whose property is lost through the defendant’s willfulness or negligence was recently recognized in principle by all the judges of the New York Court of Appeals in Purcell v. Long Island Daily Press Pub. Co., 1961, 9 N.Y.2d 255, 213 N.Y.S.2d 425, 173 N.E.2d 865. See also Flamm v. Noble, 1947, 296 N.Y. 262, 72 N.E.2d 886, 171 A.L.R. 812. Although the federal courts do not go so far as New York and give interest on death claims from the date of death as a matter of right, see New York Decedent Estate Law § 132, we note that" }, { "docid": "11516282", "title": "", "text": "1948, 335 U.S. 829, 69 S.Ct. 56, 93 L.Ed. 382; William Whitman Co. v. Universal Oil Products Co., D.C.D.Del.1954, 125 F.Supp. 137, 147; Ragsdale v. Brotherhood of R. Trainmen, Mo.App.1942, 157 S.W.2d 785; Boole v. Union Marine Ins. Co., 1921, 52 Cal.App. 207, 198 P. 416. See, also, Annotation at 112 A.L.R. 124 and note at 62 Harv.L.Rev. 647 (1949). Furthermore, it is noted that Pennsylvania courts would apparently follow the rule laid down by the New York decisions cited in this section of the opinion. See Darrow v. Keystone, etc., Stores, Inc., 1950, 365 Pa. 123, 74 A.2d 176; Perry v. Payne, 1907, 217 Pa. 252, 66 A. 553, 11 L.R.A.,N.S., 1173. . In this ease, the court used this language at page 37 of 2 N.E.2d: “It is a general rule long established that contracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms. Employers’ Liability Assur. Corp., Ltd., of London, England v. New York Linen Supply & Laundry Co., 239 N.Y. 560, 147 N.E. 195; Manhattan Ry. Co. v. Cornell, 54 Hun 292, 7 N.Y.S. 557, affirmed, 130 N.Y. 637, 29 N.E. 151. “That such is the rule in this state has been recognized alike by the federal courts as well as courts of other states, the decision in Manhattan Ry. Co. v. Cornell, supra, being cited in support thereof. Cf. Wallace v. United States, D.C., 16 F.2d 309; affirmed 9 Cir., 18 F.2d 20; Perry v. Payne, 217 Pa. 252, 66 A. 553, 11 L.R.A.,N.S., 1173 * * . In this case, the court said at page 303: “While the parties are free to contract as between themselves for the ultimate burden of liability due to negligence, yet in the absence of explicit language to the contrary, courts will not interpret an indemnity agreement as a promise by the indemnitor to save harmless the indemnitee oh account of the active negligence of the latter. * * Clearly the wording of the indemnity agreement in the case at bar is not sufficiently broad to require indemnification" }, { "docid": "20787292", "title": "", "text": "to revise, unaccompanied by any evidence of congressional awareness of the interpretation, is not persuasive evidence. Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 829, 90 L.Ed. 1084 (1946) (“[I]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law”); see also Brown v. Gardner, — U.S. -, -, 115 S.Ct. 552, 556, 130 L.Ed.2d 462 (1994). Something more than passivity is required. Schor, 478 U.S. at 846, 106 S.Ct. at 3254 (quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969)). We find the congressional silence in this case unpersuasive. Although a proponent of congressional acquiescence need not show that the acquiescence is “specifically embodied in a statutory mandate,” he bears the burden of showing “abundant evidence that Congress both contemplated and authorized” the previous noneongressional interpretation in which it now acquiesces. Schor, 478 U.S. at 847, 106 S.Ct. at 3254; see also Wilderness Society v. Morton, 479 F.2d 842, 867 (D.C.Cir.) (en banc), cert. denied, 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d 309 (1973). In this case, Appellants have not demonstrated congressional contemplation or even awareness of either the Sixth Circuit’s opinion in Pacific Legal Foundation, which only dealt with “listing,” or the Secretary’s announced policy published in the Federal Register. In fact, the legislative history makes no mention of either the Sixth Circuit’s opinion or the Secretary’s announcement. See H.R.Rep. No. 467, 100th Cong., 2d. Sess. 1-32 (1988), reprinted in 1988 U.S.C.C.A.N. 2700-50. Second, the congressional acquiescence theory applies only where Congress has revisited the language subject to the administrative interpretation. Central Bank of Denver v. First Interstate Bank of Denver, — U.S. -,-, 114 S.Ct. 1439, 1453, 128 L.Ed.2d 119 (1994). In this case, Appellants concede that “Congress, while amending oth er parts of [§ 1533], did not address the critical habitat provisions of that section.” Aplt.Br. at 36. A review of both the 1988 amendments and corresponding legislative history supports Appellants’ concession. See H.R.Rep. No. 467, 100th Cong., 2d. Sess. 1-32 (1988), reprinted in" }, { "docid": "9615092", "title": "", "text": "§ 1(7), in part reads as follows: “No common carrier subject to the provisions of this chapter, shall, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, * * Utah Code, Ann. 1943, § 76 — 3—6(3), enacted in 1917, in part provides: “(3) No common carrier subject to the provisions of this title shall, directly or indirectly, issue, give or tender any free ticket, free pass or free or reduced-rate transportation for passengers between points within this state, except to its officers, agents, employees, attorneys, physicians and surgeons, and members of their families; * * The language of the Utah statute is so strikingly similar to the Federal statute that there can be no doubt that Utah adopted it from the Federal statute. Prior to such adoption, the Supreme Court of the United States had held that a condition in a pass absolving the carrier from liability for its negligence was valid under § 1(7), supra. It reaffirmed its holding in Kansas City Southern R. Co. v. Van Zant, 260 U.S. 459, 43 S.Ct. 176, 67 L.Ed. 348, decided in 1923, and Francis v. Southern Pacific Co., 333 U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798, decided in 1948. A statute adopted from another state will be presumed to have been adopted with the construction placed upon it prior to its adoption by the courts of the state from which it was adopted. The pass was an interstate pass. Whether the validity of the condition in the pass is to be determined by Federal law, see New York Cent. R. R. Co. v. Mohney, 252 U.S. 152, 40 S.Ct. 287, 64 L.Ed. 502, 9 A.L.R. 496, or by the law of Utah, we bold that such provisions are valid. Williams v. Oregon Short Line R. Co., 18 Utah 210, 54 P. 991, 72 Am.St.Rep. 777; Houtz v. Union Pacific R. Co., 33 Utah 175, 93 P. 439, 17, L.R.A.,N.S., 628, and Saunders v. Southern Pacific Co., 13 Utah 275, 44 P. 932, are clearly" }, { "docid": "11516281", "title": "", "text": "B on 145 F.Supp. 711, supra, and in I of Civil Action No. 16395, 145 F.Supp. 718, supra, as-well as N.T. 803, 809 and 844-849. For this reason, any argument to the jury on this subject would have been, improper, as well as confusing. . Paragraph 11-b of the contract provides that: “This Agreement and any of its terms or provisions shall be interpreted and construed according to the laws of the State of New York.” The courts have generally indicated that a provision in a contract stating that the law of a state in which one party is •domiciled shall govern its interpretation, will be enforced if (1) its enforcement is not a violation of the settled, public ■policy of the forum enacted for the protection of its citizens, and (2) it was •not adopted with the object of evading the otherwise applicatory law. See Palmer v. Chamberlin, 5 Cir., 1951, 191 F.2d 532, 536, 537, 27 A.L.R.2d 416; Duskin v. Pensylvania-Central Airlines Corporation, 6 Cir., 1948, 167 F.2d 727, 729, 730, certiorari denied 1948, 335 U.S. 829, 69 S.Ct. 56, 93 L.Ed. 382; William Whitman Co. v. Universal Oil Products Co., D.C.D.Del.1954, 125 F.Supp. 137, 147; Ragsdale v. Brotherhood of R. Trainmen, Mo.App.1942, 157 S.W.2d 785; Boole v. Union Marine Ins. Co., 1921, 52 Cal.App. 207, 198 P. 416. See, also, Annotation at 112 A.L.R. 124 and note at 62 Harv.L.Rev. 647 (1949). Furthermore, it is noted that Pennsylvania courts would apparently follow the rule laid down by the New York decisions cited in this section of the opinion. See Darrow v. Keystone, etc., Stores, Inc., 1950, 365 Pa. 123, 74 A.2d 176; Perry v. Payne, 1907, 217 Pa. 252, 66 A. 553, 11 L.R.A.,N.S., 1173. . In this ease, the court used this language at page 37 of 2 N.E.2d: “It is a general rule long established that contracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms. Employers’ Liability Assur. Corp., Ltd., of London, England v. New York Linen Supply & Laundry Co., 239 N.Y." }, { "docid": "23003667", "title": "", "text": "subject to pecuniary estimate. Michigan Gent. R. R. Co. v. Vreeland, 1913, 227 U.S. 59, 71, 33 S.Ct. 192, 57 L.Ed. 417; Briscoe v. United States, 2 Cir., 1933, 65 F.2d 404; see Meehan v. Central R. R. Co. of N. J., D.C.S.D.N.Y. 1960, 181 F.Supp. 594, 606, 607, 621; cf. Sabine Towing Co. v. Brennan, 5 Cir., 1936, 85 F.2d 478; accord Rogow v. United States, D.C.S.D.N.Y.1959, 173 F.Supp. 547, 561. See also 2 Harper & James, The Law of Torts, § 25.14 (1956); McCormick, Damages, § 99 (1935). . Casey v. American Export Lines, supra, note 7; Cortes v. Baltimore Insular Line, Inc., supra, note 7; Louisiana & Arkansas R. R. Co. v. Pratt, 5 Cir., 1944, 142 F.2d 847, 153 A.L.R. 851; Cleveland Tankers v. Tierney, 6 Cir., 1948, 169 F.2d 622; Lynott v. Great Lakes Transit Corp., 4th Dept. 1922, 202 App.Div. 613, 195 N.Y.S. 13, affirmed 1922, 234 N.Y. 626, 138 N.E. 473. . Compare: Briggs v. Pennsylvania R. R. Co., 2 Cir., 1948, 164 F.2d 21, 23, 1 A.L.R.2d 475, affirmed on other grounds, 1948, 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403, with President & Directors of Manhattan Co. v. Kelby, 2 Cir., 1945, 147 F.2d 465, certiorari denied 1945, 324 U.S. 866, 65 S.Ct. 916, 89 L.Ed. 1422; see also Powers v. New York Central R. R. Co., 2 Cir., 1958, 251 F.2d 813, 76 A.L.R.2d 1207; Murphy v. Lehigh Valley R. R. Co., 2 Cir., 1946, 158 F.2d 481; Louisiana & Arkansas R. R. Co. v. Pratt, supra, note 10; Cleveland Tankers v. Tierney, supra, note 10. . The Employers’ Liability Act of June 11, 1906, c. 3073, 34 Stat. 232, declared unconstitutional in the Employers’ Liability Cases (Howard v. Illinois Cent. R. Co.), 1908, 207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297, was re-enacted with slight alteration to meet constitutional objections, April 22, 1908, c. 149, 35 Stat. 65. . We do not reach the question, unresolved in this circuit, as to whether interest qua damages may be given upon any portion of the recovery in a Jones" }, { "docid": "11895520", "title": "", "text": "all plaintiffs save plaintiff Thompson are affirmed. The judgment in favor of plaintiff Thompson is reversed. . If the transport were wholly intrastate, then federal law would not apply. State law would be controlling. See N. Y. Central R. Co. v. Mohney, 252 U.S. 152, 40 S.Ct. 287, 64 L.Ed. 502 (1920); Alderman v. Baltimore & Ohio R. Co., 113 F.Supp. 881 (S.D.W.Va.1953); Olsen v. Draper, 112 F.Supp. 859 (E.D.N.Y.1953). . The dissent would also not have applied federal law but would have applied state law. State law here would not avail the plaintiff since Tennessee has recognized the validity of waiver of liability provisions. See Empress Health & Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn.1973); Louisville & Nashville R. Co. v. Hadley, 11 Tenn.App. 642, 646 (1930). . As the dissent in the present case notes, the Thompson decision is close to 70 years old. However, the Supreme Court had the opportunity to change its rule when it reexamined the issue in 1949 in Francis, but it did not do so. We feel bound by the decisions of the Supreme Court unless and until the Supreme Court changes its decision. Were we free to do so, we might well reexamine whether the waiver of liability provision is against public policy and should not be enforced. Contracts limiting the liability of a party for his negligence are frequently held to be against public policy. What is against public policy depends on a case-by-case determination, but the rule is frequently stated that a party cannot protect himself by contract against liability for negligence in the performance of a legal duty or a duty of public service, or where a public duty is owed or public interest is involved, or where public interest requires the performance of a private duty. 175 A.L.R. 8, 14 (1948). Courts are generally hostile to contracts limiting liability and will strictly construe them. See Bisso v. Inland Waterways Corp., 349 U.S. 85, 89-91 (1955) (discussing hostility towards contracts limiting liability; holding that towers cannot so contract); see generally 57 Am.Jur.2d Negligence §§ 20-31 (1971); Restatement" }, { "docid": "17351648", "title": "", "text": "S.Ct. 473, 99 L.Ed. 483 (1955). Accord, NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 350-52, 73 S.Ct. 287, 97 L.Ed. 377 (1953); Interstate Drop Forge Co. v. Commissioner, 326 F.2d 743, 746 (7th Cir. 1964); International Bhd. of Operative Potters v. NLRB, 116 U.S.App.D.C. 35, 38, 320 F.2d 757, 760 (1963); NLRB v. A.P.W. Products Co., 316 F.2d 899, 904-05 (2d Cir. 1963). Cf. Commissioner v. P. G. Lake, Inc., 356 U.S. 260, 265-66 n. 5, 78 S.Ct. 691, 2 L.Ed.2d 743 (1958); Gulf Canal Lines v. United States, 258 F.Supp. 864, 873 (S.D.Tex.1966), affd. mem., 386 U.S. 348, 87 S.Ct. 1161, 18 L.Ed.2d 98 (1967). . 350 U.S. at 396-97, 76 S.Ct. at 424. Accord, Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 116-17, 59 S.Ct. 423, 83 L.Ed. 536 (1939). Cf. Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Johnson v. Manhattan Ry., 289 U.S. 479, 497-500, 53 S.Ct. 524, 77 L.Ed. 1467 (1933); McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 492-93, 51 S.Ct. 510, 75 L.Ed. 1183 (1931); New York, N. H. & H. R. R. v. ICC, 200 U.S. 361, 401-02, 26 S.Ct. 272, 50 L.Ed. 515 (1906) (agency’s refusal to change longstanding interpretation supported by reenactment in the interim). . See text at notes 43-45 infra. . The cases upon which the Commission relies were based upon a much weaker showing of congressional intent to adopt a prior administrative interpretation. See, e. g., Commissioner v. Glenshaw Giass Co., 348 U.S. 426, 75 S.Ct. 473, 99 L.Ed. 483 (1955) (discussed in text at note 35 supra); Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946) (subsequent legislative action found to support changed interpretation); Helvering v. Reynolds, 313 U.S. 428, 432-33, 61 S.Ct. 971, 85 L.Ed. 1438 (1941) (distinguishing Helvering v. R. J. Reynolds Tobacco Co., supra note 36, on the ground that the regulation there had “remained outstanding for a long time and was followed by several reenactments of the statute”). . John J. Mulqueen Contract Carrier Application, 250" }, { "docid": "23505869", "title": "", "text": "1946, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Jesionowski v. Boston & M. R. R. Co., 1947, 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416; Ellis v. Union Pac. R. Co., 1947, 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Lillie v. Thompson, 1947, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73; Johnson v. United States, 1948, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468; Wilkerson v. McCarthy, 1949, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Affolder v. Now York, C. & St. L. R. Co., 1950, 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683; Stone v. New York, C. & St. L. R. Co., 1953, 344 U.S. 407, 73 S.Ct. 358, 97 L.Ed. 441; Smalls v. Atlantic Coast Line R. Co., 1955, 348 U.S. 946, 75 S.Ct. 439, reversing 4 Cir., 216 F.2d 842; Palum v. Lehigh Valley R. Co., 2 Cir., 165 F.2d 3, 5-6; Korte v. New York, N. H. & H. R. Co., 2 Cir., 191 F.2d 86, 88. A fortiori, is it permissible in a suit by a seaman based on unseaworthiness. For the Supreme Court has held that the duties owed by a ship to its seamen rank higher than those of a railroad to its workers. See Callen v. Pennsylvania R. Co., 332 U.S. 625 (cf. 631), 68 S.Ct. 296, 298, 92 L.Ed. 242, rejecting a contrary suggestion made in Ricketts v. Pennsylvania R. Co., 2 Cir., 153 F.2d 757, at pages 768-769, 164 A.L.R. 387. In Petterson v. Alaska S. S. Co., 9 Cir., 205 F.2d 478, 479, the court said: “In making this inference we do not rely upon the tort doctrine of res ipsa lo-quitur, although the result is similar”; this decision was affirmed, without opinion, by the Supreme Court in Alaska S. S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798. (2) Miss Jenkinson also testified that, before serving on The Marine Flasher, she had worked on The Ernie Pyle, a C-4 like the Marine Flasher; and that on The Ernie Pyle, she had seen garbage" } ]

[ { "docid": "10759020", "title": "", "text": "1325(b)(1) (contemplating that the trustee might object to the confirmation of the plan), and 323(a) (\"The trustee in a case under this title is the representative of the estate.”). . Celli v. First Nat’l Bank of N. New York (In re Layo), 460 F.3d 289 (2d Cir.2006) (chapter 13 confirmation order is res judicata with respect to trustee’s post-confirmation attempt to avoid a lien on the debtor’s property); Boyajian v. Vargas (In re Vargas), 2012 WL 2450170, *4 (1st Cir. BAP 2012) (although not listed in § 1327(a), a chapter 13 trustee is bound by a confirmed plan); Ledford v. Brown (In re Brown), 219 B.R. 191, 194 (6th Cir. BAP 1998) (while the plain language of § 1327(a) does not mention the trustee, all participants in the bankruptcy case are barred by the doctrine of res judicata from asserting matters they could have raised in the bankruptcy proceedings; a trustee is considered a party to a confirmation hearing and as such is bound by the proceeding); In re Fluellen, 446 B.R. 612, 618 (Bankr.M.D.Ga.2011), aff'd 2012 WL 74874 (M.D.Ga.2012) (although not listed in § 1327(a), a chapter 13 trustee is bound by a confirmed plan); In re Smith, 2004 Bankr.LEXIS, 11, 17-18 (Bankr.W.D.Mo.2004) (while the plain language of § 1327(a) does not include the trustee, it is a distinction without a difference, and the res judicata effect of a confirmed plan extends to the trustee); In re Hallmark, 225 B.R. 192, 195-96 (Bankr.C.D.Cal.1998) (the trustee is bound by confirmation of the plan, and the only way to change that is to seek modification); In re Lee, 189 B.R. 692, 694 (Bankr.M.D.Tenn.1995) (“The binding effect of confirmation commits the Chapter 13 Trustee as well.”); In re Wilson, 157 B.R. 389, 390 (Bankr.S.D.Ohio 1993) (principles of claim preclusion or res judicata bar a trustee from raising as grounds for modification facts that were known and could have been raised prior to confirmation of the debtor’s plan). . The qualification \"for redistribution to creditors” appears only in Count IV, but the Trustee clearly has the same purpose in mind in Count III." } ]

[ { "docid": "8874723", "title": "", "text": "order overruling his objection, all of the trustee’s submissions in this appeal make it clear that he also is challenging the confirmation order entered on the same date. Because we interpret notices of appeal liberally and because the Luedtkes have not been prejudiced or mislead by the contents of the trustee’s notice of appeal, we will construe the notice of appeal as covering both orders. See Greenpoint Mortg. Funding, Inc. v. Herrera (In re Herrera), 422 B.R. 698, 708 (9th Cir. BAP 2010), aff'd & adopted sub nom. Home Funds Direct v. Monroy (In re Monroy), 650 F.3d 1300 (9th Cir.2011) (citing Munoz v. Small Bus. Admin., 644 F.2d 1361, 1364 (9th Cir.1981)); see also United States v. Arkison (In re Cascade Rds.), 34 F.3d 756, 761-62 (9th Cir.1994). In fact, while the bankruptcy court’s order confirming the Luedtkes' chapter 13 plan was a final and appealable order, see United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 269, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010), its order overruling the trustee’s plan objection was an interlocutory order because that order did not by itself fully and finally resolve the discrete issue before the bankruptcy court—whether the Luedtkes’ proposed plan should be confirmed. See generally Rosson v. Fitzgerald (In re Rosson), 545 F.3d 764, 769 (9th Cir.2008). Nor would this order by itself have seriously affected the interests the trustee represents. See id. at 769-70. As an interlocutory order leading up to the bankruptcy court’s confirmation order, the order overruling the trustee’s objection merged into the confirmation order for appealability purposes. See Giesbrecht v. Fitzgerald (In re Giesbrecht), 429 B.R. 682, 687 (9th Cir. BAP 2010). . See, e.g., Babin v. Wilson (In re Wilson), 383 B.R. 729, 734 (8th Cir. BAP 2008) (citing In re Ransom, 380 B.R. at 808); In re Byrn, 410 B.R. 642, 650 (Bankr.D.Mont.2008); In re Howell, 366 B.R. 153, 158 (Bankr.D.Kan. 2007); In re Slusher, 359 B.R. 290, 310 (Bankr.D.Nev.2007); In re McGuire, 342 B.R. 608, 613-14 (Bankr.W.D.Mo.2006); In re Oliver, 6350 B.R. 294, 301 (Bankr.W.D.Tex.2006); In re Carlin, 348 B.R. 795, 798 (Bankr.D.Or.2006);" }, { "docid": "10705508", "title": "", "text": "if the Court were to conclude that judicial estoppel should not be applied on these facts, application of the doctrine of res judicata leads to precisely the same result. There is ample case law supporting the proposition that a confirmed plan is res judicata as to all issues that were, or could have been, decided at the time of confirmation. In Storey v. Pees (In re Storey), 392 B.R. 266 (6th Cir. BAP 2008), for example, the BAP ruled that § 1327 “precludes modification of a confirmed plan under § 1329 to address issues that were or could have been decided at the time the plan was originally confirmed,” and quoted 8 Collier on Bankruptcy ¶ 1329.03 (15th ed. Rev. 2008) as supporting the principle that “[a] trustee ... may not raise as grounds for modification under [§ 1329] facts that were known and could have been raised in the original confirmation proceedings, because the order of confirmation must be considered res judicata as to that set of circumstances.” Id. at 272. Thus, the BAP held that “[t]he practical impact of this conclusion is that modification under § 1329(a) will be limited to matters that arise post-confirmation.” Id. As explained above, the facts bearing on the extent of CitiMortgage’s lien were available to the Debtors and the Trustee prior to confirmation, and the issue of whether CitiMortgage has a lien on the entire Property could have, and should have, been raised then. Other courts have reached the same conclusion when debtors have attempted to reclassify secured claims post-confirmation. See Celli v. First Nat’l Bank of N. New York (In re Layo), 460 F.3d 289, 293, 295 (2d Cir.2006) (concluding that the confirmation order was res judicata, the court held that the trustee and debtor could not attempt to avoid a lien following confirmation and stated: “[T]he facts that form the basis for the Trustee’s challenge to the mortgages were available in the county clerk’s office for anyone to see.... [T]he Trustee had both a motive and opportunity to confirm the status of real estate liens affecting the debtor’s estate at" }, { "docid": "8874722", "title": "", "text": "contrary positions taken by courts considering this issue. Under these circumstances, the rule of stare decisis does not require us to follow the comments in Ransom regarding the older vehicle operating expense, and we decline to do so. See Yarnall v. Martinez (In re Martinez), 418 B.R. 347, 354 & n. 12 (9th Cir. BAP 2009). Based upon our statutory analysis, set forth above, we conclude that allowance of the older vehicle operating expense is at odds with § 707(b)(2)(A)(ii)(I). CONCLUSION For the reasons set forth above, we REVERSE the bankruptcy court’s order overruling the trustee’s plan confirmation objection and its order confirming the Luedtkes’ chapter 13 plan, and we REMAND for further proceedings consistent with this decision. . Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. . The 2005 amendments are more formally known as the Bankruptcy Abuse Prevention and Consumer protection Act of 2005, Pub.L. 109-8, April 20, 2005, 119 Stat. 23 (\"BAPC-PA”). . While the trustee’s notice of appeal only explicitly referenced the order overruling his objection, all of the trustee’s submissions in this appeal make it clear that he also is challenging the confirmation order entered on the same date. Because we interpret notices of appeal liberally and because the Luedtkes have not been prejudiced or mislead by the contents of the trustee’s notice of appeal, we will construe the notice of appeal as covering both orders. See Greenpoint Mortg. Funding, Inc. v. Herrera (In re Herrera), 422 B.R. 698, 708 (9th Cir. BAP 2010), aff'd & adopted sub nom. Home Funds Direct v. Monroy (In re Monroy), 650 F.3d 1300 (9th Cir.2011) (citing Munoz v. Small Bus. Admin., 644 F.2d 1361, 1364 (9th Cir.1981)); see also United States v. Arkison (In re Cascade Rds.), 34 F.3d 756, 761-62 (9th Cir.1994). In fact, while the bankruptcy court’s order confirming the Luedtkes' chapter 13 plan was a final and appealable order, see United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 269, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010), its order overruling the trustee’s plan objection was" }, { "docid": "3578330", "title": "", "text": "about a position transporting vehicles purchased at auction, but he could not afford the up-front costs. CONCLUSIONS OF LAW At the beginning of their cases, Chapter 13 debtors propose plans to repay all or a portion of their debts to their pre-petition creditors. 11 U.S.C. § 1321. If a debtor’s plan conforms to the requirements of the Bankruptcy Code, the court confirms the plan. 11 U.S.C. § 1322 & 1325. “The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.” 11 U.S.C. § 1327(a). Courts have analogized a confirmed Chapter 13 plan to “ ‘a new and binding contract, sanctioned by the court, between the debtors and their pre-confir-mation creditor[s],’ ” Murphy v. O’Donnell (In re Murphy), 474 F.3d 143, 148 (4th Cir.2007) (quoting Matter of Penrod, 169 B.R. 910, 916 (Bankr.N.D.Ind.1994)), and held that confirmed plans bind the parties to a Chapter 13 case even if they include provisions contrary to the Bankruptcy Code’s requirements, United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 275, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). Despite the binding nature of confirmed Chapter 13 plans, the Bankruptcy Code allows post-confirmation changes in certain circumstances. 11 U.S.C. § 1329; Murphy, 474 F.3d at 148. Section 1329 of the Bankruptcy Code governs the modification of Chapter 13 plans post-confirmation. Section 1329 provides, in pertinent part: (a) At any time after confirmation of the plan but before the completion of payments under-such plan, the plan may be modified, upon request of the debtor, the trustee, or the holder of an allowed unsecured claim, to— (1) increase or reduce the amount of payments on claims of a particular class provided for by the plan; (2) extend or reduce the time for such payments; (3) alter the amount of the distribution to a creditor whose claim is provided for by the plan to the extent necessary to take account of any payment of such claim" }, { "docid": "8943599", "title": "", "text": "Espinosa decision, which supports the principle of finality of plan confirmation orders. See also; In re McGrahan, 459 B.R. at 874-875; In re Murphy, 487 B.R. 86, 94 (Bankr.D.R.I.2013); In re Muñoz Marquez, 2011 WL 4543226, 2011 Bankr.Lexis 3806 (Bankr.D.P.R.2011). In Bankowski v. Wells Fargo Bank, N.A., 480 B.R. 436, 444-445 (Bankr.D.Mass.2012), the court concluded that a confirmed plan binds not only the debtors and creditors but also the Trustee pursuant to case law. See also; Boyajian v. Vargas (In re Vargas), 2012 WL 2450170, 2012 Bankr.Lexis 2910 (1st Cir. BAP 2012) (“Although not a listed party, a chapter 13 Trustee is bound by a confirmed plan as well. See, e.g. Hope v. Acorn Fin., Inc., No. 5:110CV-276, 2012 U.S. Dist. Lexis 2698, 2012 WL 74874 (M.D.Ga. Jan. 10, 2012) (reviewing numerous eases that support the conclusion). Confirmation of a chapter 13 plan affords it res judicata effect and therefore prevents relitigation of matters that either were raised or could have been raised prior to confirmation. See e.g., Burnett v. Burnett (In re Burnett), 646 F.3d 575, 581 & n. 4 (8th Cir.2011) (noting Supreme Court, while not citing § 1327(a) directly, affirmed the binding effect in United Student Aid Funds, Inc. v. Espinosa [559 U.S. 260], 130 S.Ct. 1367, 1381, 176 L.Ed.2d 158”)). After carefully analyzing the pertinent jurisprudence, the commentators and the relevant sections of the Bankruptcy Code, this court concludes that the stage of the bankruptcy process in which the inconsistency between the claims allowance process and the binding effect of the plan arises is critical and essential in determining which should prevail. Also, the sufficiency of the notice of the treatment provided to a secured creditor before plan confirmation must afford reasonable time for the creditor to object to the plan. Thus, timing and due notice are key to the binding effect of a confirmed plan and the finality of plan confirmation orders. On the other hand, if a discrepant secured proof of claim is filed before the plan confirmation, then the debtor or Trustee should object the same as part of the claims allowance/disallowance process" }, { "docid": "662035", "title": "", "text": "from a Bankruptcy Court’s order, this Court reviews questions of fact for clear error and questions of law de novo. Palmacci v. Umpierrez, 121 F.3d 781, 785 (1st Cir.1997). B. Legal Framework Section 1325(a) of chapter 11 of the United States Code (“Section 1325(a)”) governs the confirmation of a Chapter 13 plan, and in relevant part provides that: [T]he court shall confirm a plan if: (1) The plan complies with the provisions of this chapter and with the other applicable provisions of the title; ... (5) with respect to each allowed secured claim provided for by the plan (A) the holder of such claim has accepted the plan ... (6) the debtor will be able to make all payments under the plan and to comply with the plan. 11 U.S.C. § 1325(a). To obtain confirmation under Section 1325(a), the burden is on the debt- or to prove that each of the statutory criteria for confirmation is met. See In re Haque, 334 B.R. 486, 489 (Bankr.D.Mass.2005) (holding that under Section 1325(a)(3), the burden of proof is on the debtor); see also In re Virden, 279 B.R. 401, 407 (Bankr.D.Mass.2002). In undertaking its review, the bankruptcy court “should exercise [its] judicial discretion and assess the evidence to ensure that [the proposed Chapter 13 plan] meets the guidelines established by [S]eetion 1325.” First Nat’l Bank of Boston v. Fantasia (In re Fantasia), 211 B.R. 420, 423 (1st Cir. BAP 1997) (citing Fidelity & Cas. Co. of N.Y. v. Warren (In re Warren), 89 B.R. 87 (9th Cir. BAP 1988)). Even in the absence of an objection to confirmation by a creditor, the Chapter 13 trustee, or any other interested party, the bankruptcy court must ensure that all of the Section 1325 requirements have been met. See United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 278, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). Where a Chapter 13 plan accords with all the statutory criteria, the Bankruptcy Court must confirm the plan. In re Hamilton, 401 B.R. at 542. On appeal, Austin makes two arguments. First, Austin contends that the Trustee lacks" }, { "docid": "2245794", "title": "", "text": "error. Arnold v. Gill (In re Arnold), 252 B.R. 778, 784 (9th Cir. BAP 2000). V.DISCUSSION The Trustee argues that it was error for the bankruptcy court to confirm the Plan where the Plan did not provide adequate protection to the Secured Creditors through equal payments commencing with the first Plan payment due, as required under § 1325(a)(5)(B)(iii)(II), in light of the Supreme Court’s decision in United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). The Debtor argued, and the bankruptcy court agreed, that the allowed claims of secured creditors can be satisfied in three alternative ways in a chapter 13 plan: a) by secured creditor acceptance of its treatment under the plan (§ 1325(a)(5)(A)); b) by surrender of the secured creditor’s collateral (§ 1325(a)(5)(C)); or c) by the secured creditor retaining its lien on its collateral until its allowed secured claim is paid in full during the term of the plan (§ 1325(a)(5)(B)). Since none of the Secured Creditors objected to their treatment in the Plan, the bankruptcy court concluded, under Ninth Circuit and other authority, that the Secured Creditors had accepted the Plan, and the alternative provided by § 1325(a)(5)(A) was satisfied. We agree for the following reasons. In Espinosa, the Supreme Court was confronted with the following situation: The debtor, Francisco Espinosa, had student loan debt. Mr. Espinosa filed for protection under chapter 13 and in his chapter 13 plan, proposed to pay the' principal of his student loan debt over the life of the plan but further provided that once the principal had been paid, any accrued interest would be discharged. Notice and a copy of Mr. Espinosa’s plan were provided to the student loan creditor, United Student Aid Funds, Inc. (“United”). In bold typeface immediately beneath the caption of the plan was stated: “WARNING IF YOU ARE A CREDITOR YOUR RIGHTS MAY BE IMPAIRED BY THIS PLAN.” The plan further noted the deadlines for filing proofs of claim and objections to confirmation of the plan. Id. at 265,130 S.Ct. 1367. United received the notice and filed a" }, { "docid": "4562310", "title": "", "text": "order confirming a chapter 13 plan is a final judgment binding on creditors whose claims are addressed in the plan and is subject to modification only by appeal, revocation under 11 U.S.C. § 1330, or collateral attack under the narrow avenues provided by Federal Rule of Civil Procedure 60(b), which are made generally applicable in bankruptcy cases by Federal Rule of Bankruptcy Procedure 9024. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 269-70, 275, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). Moreover, as § 1327’s text and the holdings of these cases demonstrate, the principle that liens pass through bankruptcy unaffected cannot support the conclusion that a no-discharge chapter 13 plan may not extinguish liens. As Penrod cautions, “like most generalizations about law, the principle that liens pass through bankruptcy unaffected cannot be taken literally.” 50 F.3d at 462. Penrod holds that a lien on property provided for in a chapter 11 plan survives only to the extent allowed in the plan or in the order confirming the plan. Id. at 462-63. And no difference between the chapter 11 and chapter 13 plan confirmation provisions suggests that the “pass-through” principle has any greater effect in cases filed under chapter 13 than in those filed under chapter 11. See In re Pence, 905 F.2d at 1109-10 (addressing the general principle that hens pass through bankruptcy unaffected in the context of a case filed under chapter 13 and stating, “unless the bankruptcy proceeding avoided it, [the creditor’s] lien on [the debtor’s] residence should remain intact” (emphasis added)); see also Palomar, 722 F.3d at 995 (suggesting § 1322(b)(2) allows lien stripping). None of the courts relying on the pass-through principle to disallow lien stripping in no-discharge chapter 13 cases explain why the principle does not equally apply when a chapter 13 debtor is eligible for a discharge. And, as explained above, lien stripping by chapter 13 plans proposed by discharge-eligible chapter 13 debtors is widely accepted. See Woolsey v. Citibank, N.A. (In re Woolsey), 696 F.3d 1266, 1279 (10th Cir.2012) (collecting authorities). C HUD’s final argument is that allowing discharge-ineligible chapter" }, { "docid": "10705497", "title": "", "text": "and thus subject to further administration, the Court concludes that the goal the Trustee/Debtors seek to achieve in this adversary proceeding would not be served by such a declaration. Because in order to alter the treatment of CitiMort-gage’s secured claim provided for under the confirmed Plan, the Trustee must first establish a basis for the Plan’s modification. And as explained below, under the circumstances of this case, the doctrines of judicial estoppel and/or res judicata preclude the Debtors or the Trustee from modifying the Plan to change the treatment of CitiMortgage’s secured claim. Section 1327(a) provides that “[t]he provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.” 11 U.S.C. § 1327(a). The Supreme Court has held that a confirmation order is enforceable and binding if affected parties had proper notice of the provisions of a plan and did not object or file a timely appeal. United Student Aid Funds, Inc. v. Espinosa, — U.S. —, 130 S.Ct. 1367, 1372, 176 L.Ed.2d 158 (2010). “[CJonfirmation of a plan has been described as ‘res judicata of all issues that could or should have been litigated at the confirmation hearing.’ ” Ruskin v. DaimlerChrysler Servs. N. Amer., L.L.C. (In re Adkins), 425 F.3d, 296, 302 (6th Cir.2005) (quoting In re Cameron, 274 B.R. 457, 460 (Bankr.N.D.Tex.2002)). “Although this provision typically is employed as a shield by a debtor to bar a creditor from taking action against the debtor in contravention of the terms of a confirmed plan, a debtor is equally bound by the confirmation order.” Woltman v. PNC Bank (In re Woltman), 2008 WL 5157477, at *2 (Bankr.M.D.Pa.2008). “Once a plan is confirmed and a party in interest has had a reasonable opportunity to raise objections, a strong presumption of finality attaches to the order confirming the plan.... Although this presumption of finality is not absolute, a party seeking to undo a confirmed plan must have good reasons for doing" }, { "docid": "8943574", "title": "", "text": "Circuit Bankruptcy Appellate Panel in New Hampshire v. McGrahan (In re McGrahan), 459 B.R. 869 (1st Cir. BAP 2011) discussed the binding effect of a confirmed plan pursuant to section 1327(a) and stated: “Under this provision, once a bankruptcy plan is confirmed, the debtor and each creditor are bound by its terms. See Id. [referencing 11 U.S.C. § 1327(a)]. As the First Circuit has explained, ‘confirmation of a Chapter 13 plan customarily is res judicata as to all issues that were or could have been decided during the confirmation process.’ Carvalho v. Federal National Mortgage Association (In re Carvalho), 335 F.3d 45, 49 (1st Cir.2003). ‘There must be finality to a confirmation order so that all parties may rely upon it without concern that actions that they may later take could be upset because of a later change or revocation of the order.’ 4-1327 Alan N. Resnick & Henry J. Sommer, Collier Bankruptcy Manual, ¶ 1327.02[1] (3d. ed. Rev.). The United States Supreme Court has emphasized that plan confirmation orders are final and binding regardless of pre-confirmation rights held by creditors. See United Student Aid Funds, Inc. v. Espinosa [559 U.S. 260], 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). The binding effect of confirmation has led courts to conclude that once a plan is confirmed, a creditor’s rights and interests are defined within the boundaries of the plan, and proceedings that are inconsistent with the confirmed plan are improper, even if they fall within an exception to the automatic stay.” In re McGrahan, 459 B.R. at 874. In Burrell v. Town of Marion (In re Burrell), 346 B.R. 561, 570 (1st Cir. BAP 2006), the First Circuit Bankruptcy Appellate Panel also emphasized the importance of the binding effect of the confirmation order and the finality that the same provides to the bankruptcy proceedings, irrespective of whether a secured claim was improperly treated in a plan. In Burrell, the Bankruptcy Appellate Panel concluded: “The allowance of the Town’s secured claim for prepetition real estate taxes and water claims was res judicata on the amount of its claim. See In re Bernard," }, { "docid": "5029249", "title": "", "text": "the provisions of [chapter 13] and with the other applicable provisions of [title 11].” 11 U.S.C. § 1325 (a)(1). A plan that attempts to do what § 1322(b)(2) forbids does not satisfy this requirement. Nonetheless, it is argued that the court should not consider the issue because Citi Mortgage was given a separate notice of what has been proposed, the modification was the subject of a separate hearing, to which Citi Mortgage was invited, and it did not appear or object. As the trustee phrases it, under these circumstances, “acquiescence has to be presumed.” As appealing as that argument might seem, and as much as the court might like to accept it, it cannot. It is diametrically opposed to the instructions the Supreme Court handed down in United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). There, the Court took issue with the Ninth Circuit’s comments that the bankruptcy court should confirm a plan with provisions that conflict with the Bankruptcy Code and Rules of Procedure unless the creditor affected raised a timely objection. Id, 559 U.S. at 276, 130 S.Ct. at 1380. Instead, the Court stated the failure to comply with those requirements “should prevent confirmation of the plan even if the creditor fails to object or to appear in the proceeding at all.” Id. That is the situation here. The Court went on to observe: “Section 1325(a) ... requires bankruptcy courts to address and correct a defect in a debtor’s proposed plan even if no creditor raises the issue.” Id, 559 U.S. at 277, 130 S.Ct. at 1381 n.14 (emphasis original). This court cannot “correct a defect in the proposed plan” unless it independently determines whether a plan containing such a provision satisfies the requirements of § 1325(a), even if no creditor appears or raises the issue. See, In re Carlton, 437 B.R. 412, 417 (Bankr. N.D. Ala. 2010) (“After Espinosa there can be no doubt about a bankruptcy court’s authority and responsibility to deny confirmation of an offending plan although the creditor who would suffer the consequences of confirmation" }, { "docid": "662036", "title": "", "text": "is on the debtor); see also In re Virden, 279 B.R. 401, 407 (Bankr.D.Mass.2002). In undertaking its review, the bankruptcy court “should exercise [its] judicial discretion and assess the evidence to ensure that [the proposed Chapter 13 plan] meets the guidelines established by [S]eetion 1325.” First Nat’l Bank of Boston v. Fantasia (In re Fantasia), 211 B.R. 420, 423 (1st Cir. BAP 1997) (citing Fidelity & Cas. Co. of N.Y. v. Warren (In re Warren), 89 B.R. 87 (9th Cir. BAP 1988)). Even in the absence of an objection to confirmation by a creditor, the Chapter 13 trustee, or any other interested party, the bankruptcy court must ensure that all of the Section 1325 requirements have been met. See United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 278, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). Where a Chapter 13 plan accords with all the statutory criteria, the Bankruptcy Court must confirm the plan. In re Hamilton, 401 B.R. at 542. On appeal, Austin makes two arguments. First, Austin contends that the Trustee lacks standing to object to the Proposed Plan in the absence of an objection by an otherwise interested party. Austin’s Br. 7. In the alternative, she contends that even if the Trustee has standing, the Bankruptcy Court erred in denying confirmation of the Proposed Plan because the Proposed Plan was still “feasible.” Id. at 6 (arguing that “even the most impecunious of debtors has the ability to make no payments to creditor”). C. Standing Despite objecting to the confirmation of both of Austin’s previous proposed Chapter 13 plans, the Mortgagee did not object to the confirmation of the Proposed Plan. Id. at 4. The issue before the Court is whether, given this lack of an objection by the secured creditor, the Trustee has standing to object to the confirmation of the Proposed Plan. Before considering this issue, however, it is first necessary to consider what effect the non-objection of the Mortgagee has on the potential confirmation of the plan&emdash; specifically, whether it can be considered acceptance of the Proposed Plan and the proposed treatment of its" }, { "docid": "15453968", "title": "", "text": "counsel should be provided notice of any post-confirmation charges, fees, costs, or other changes to the loan, and also reserve the right for Debtors to cure or waive post-confirmation defaults. The final nonconforming provision states that no provisions in Debtors’ Plan will be deemed to waive or adversely affect any action under 11 U.S.C. § 524(i). CONCLUSIONS OF LAW I. Judge’s Duty of Independent Review The United States Supreme Court has stated that even if no objections to a proposed chapter 13 plan are filed, a bankruptcy court is required to undertake an independent examination of the debtor’s plan in order to ensure that it complies with the requirements of the Bankruptcy Code. United Student Aid Funds, Inc. v. Espinosa, — U.S. -, 130 S.Ct. 1367, 1381, 1381 n. 14, 176 L.Ed.2d 158 (2010). See also In re Martin, No. 10-8127113, 2011 WL 309600, at *6 (Bankr.M.D.N.C. Jan.26, 2011) (rejecting Debtors’ argument that Espinosa “places the burden on creditors to object ... and [requires] bankruptcy courts [] to perceive a creditor’s inaction as an implicit acceptance of the plan” and stating that “bankruptcy courts cannot confirm plans that do not comply with the Code simply because a creditor fails to come forward”); In re Russell, No. 10-11720-S SM, 2010 WL 2671496, at *4 (Bankr.E.D.Va. June 30, 2010) (“[A] bankruptcy court has an independent duty to ensure that a chapter 13 plan meets the statutory requirements for confirmation.”) (citing United Student Aid Funds, Inc. v. Espinosa, — U.S. -, 130 S.Ct. 1367, 1381 n. 14, 176 L.Ed.2d 158 (2010); United States v. Easley, 216 B.R. 543, 544 n. 1 (Bankr.W.D.Va.1997); In re Bowles, 48 B.R. 502, 505 (Bankr.E.D.Va.1985)). Debtors’ counsel nevertheless asserts that because no creditors have objected to Debtors’ proposed plan, all creditors accept the plan and it must be confirmed. Debtors’ counsel’s authority for this assertion is Judge Waites’ opinion in In re Thomas, as well as the language of 11 U.S.C. § 1325 and the language in the Notice to Creditors and Parties in Interest portion of the form plan, which states, “Failure to object may constitute an" }, { "docid": "5376509", "title": "", "text": "a chapter 13 plan, Congress instead created this alternate remedy through silence. We are not convinced. Instead, we believe Congress assumed unfiled claims would be disallowed and discharged, just as late-filed ones now clearly are. Id. at 154. Adversary Proceeding Normally Necessary to Avoid Liens ■ Rule 7001(2) requires an Adversary proceeding to determine the “validity, priori ty, or extent of a lien or other interest in property” and to obtain a declaratory judgment relating to an applicable lien interest. Fed. R. Bankr.P. 7001(2) and 7001(9), respectively. In In re Forrest, 424 B.R. 831, 835 (Bankr.N.D.Ill.2009) it was held therein that due process entitles the mortgagee to the heightened notice through service of summons and complaint in an adversary proceeding, and debtor cannot instead include a provision in the Chapter 13 plan and expect it to bind a mortgagee who has not voluntarily appeared in the case. See also In re Stewart, 408 B.R. 215, 219 (Bankr.N.D.Ind. 2009), interpreting In re Hanson, 397 F.3d 482 (7th Cir.2005) (“a chapter 13 plan, in and of itself, cannot affect creditors’ interests in a circumstance in which those interests are the subject of a separate procedural mechanism under the Bankruptcy Code”). That holding may be viewed in light of a Supreme Court decision interpreting notice requirements under the Fed. R. Bankr. P. In United Student Aid Funds v. Espinosa, 559 U.S. 260, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010), the Supreme Court considered the appeal by a student loan creditor of an order confirming a Chapter 13 debtor’s plan of reorganization that provided for discharge of part of the debt without a finding of undue hardship. Id. at 1373. The debtor filed a plan that proposed to discharge a portion of his student loan debt, but he failed to initiate the adversary proceeding as required by Fed. R. Bankr.P. 7001 for such discharge. Id. The creditor received notice of, but did not object to, the plan, and failed to file an appeal after the plan was confirmed. Id. It later received Plan payments due to it. Id. The creditor further argued that its" }, { "docid": "17046986", "title": "", "text": "bankruptcy.” In re Tomasini, 339 B.R. 773, 779-80 (Bankr.D.Utah 2006). Among other requirements for confirmation, § 1325(a)(7) states that the court shall confirm a debtor’s Chapter 13 plan if “the action of the debtor in filing the petition was in good faith.” See § 1325(a)(7) (2010). At confirmation, this Court considers the following nonexclusive factors to determine whether a debtor filed her petition in good faith: (1) any past bankruptcy filings by the debtor, including a determination of whether the debtor experienced a change in circumstances that would warrant another filing; (2) the amount of time between the debtor’s filings; (3) the debt- or’s pre-petition behavior; and (4) the impact of the various filings on the debtor’s creditors. See Bowen, slip op. at 5 (Bankr. D.S.C. Jan. 9, 2008) (citing In re Goodwin, C/A No. 05-45110-JW, slip op. at 3-4 (Bankr.D.S.C. Dec. 19, 2005)). The same facts that demonstrated Debtor’s good faith upon the grant of her motion to extend the automatic stay also provided support for the Court’s finding of good faith in the filing of her petition when reviewed at the confirmation stage, as required by § 1325(a)(7): (1) Debtor has experienced a change in circumstances since the dismissal of her Third Case; (2) Debtor’s filing of her four total bankruptcy cases spans the course of nearly fifteen years; (3) prior to her filing of the instant case, Debtor made multiple attempts to resolve outstanding issues relating to Midwest’s debt; and (4) Midwest, in previous cases and in the instant case, has been afforded fair treatment through Debtor’s various confirmed plans and is on course in this ease to have its allowed secured claim paid in full. Furthermore, Midwest is bound to the treatment afforded to it under Debt- or’s confirmed Plan in light of § 1327 and res judicata. See § 1327(a) (2010) (“The provisions of a confirmed plan bind the debtor and each creditor, .... whether or not such creditor has objected to, has accepted, or has rejected the plan.”); United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 130 S.Ct. 1367, 176 L.Ed.2d 158" }, { "docid": "19615541", "title": "", "text": "one of section 1325(a)(5)'s three conditions has been met, since section 1325(a)(5) must be satisfied in order for a plan to be confirmed. See United Student Aid Funds, Inc. v. Espinosa , 559 U.S. 260, 277, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010) (noting that all conditions in section 1325(a) are mandatory); Johnson v. Home State Bank , 501 U.S. 78, 87-88, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) ; In re Andrews , 49 F.3d 1404, 1409 (9th Cir. 1995) (noting the use of the disjunctive \"or\" in section 1325(a)(5) ) (quoting In re Szostek , 886 F.2d 1405, 1412 (3d Cir. 1989) ). Section 1326(b)(1) provides in relevant part that: Before or at the time of each payment to creditors under the plan, there shall be paid-(1) any unpaid claim of the kind specified in section 507(a)(2) of this title .... 11 U.S.C. § 1326(b)(1). Section 1326(b) sets up a scheme by which administrative expense payments must be made either before or concurrently with payments to creditors; in other words, initial payments to administrative expense claimants cannot commence on a date later than the date on which initial payments to creditors begin. See In re Maldonado , 483 B.R. 326, 337 (Bankr. N.D. Ill. 2012) ; but see In re Harris , 304 B.R. 751, 756-57 (Bankr. E.D. Mich. 2004) (stating that administrative claimants such as the debtor's attorney must be paid in full before payments to secured or unsecured creditors begin). The precise workings of section 1326(b), as pertinent to this case, are as follows. First, the section references unpaid claims \"of a kind specified in section 507(a)(2),\" which in turn references the administrative expenses found in section 503(b), with those expenses including \"compensation and reimbursement awarded under section 330(a) of this title.\" 11 U.S.C. §§ 1326(b)(1), 507(a)(2), 503(b)(2). One type of compensation or reimbursement that may be awarded under section 330(a) is that for the services of a debtor's attorney in a case under chapter 13. 11 U.S.C. § 330(a)(4)(B). Thus, the approved compensation of a debtor's attorney in a chapter 13 case may be paid" }, { "docid": "17046987", "title": "", "text": "filing of her petition when reviewed at the confirmation stage, as required by § 1325(a)(7): (1) Debtor has experienced a change in circumstances since the dismissal of her Third Case; (2) Debtor’s filing of her four total bankruptcy cases spans the course of nearly fifteen years; (3) prior to her filing of the instant case, Debtor made multiple attempts to resolve outstanding issues relating to Midwest’s debt; and (4) Midwest, in previous cases and in the instant case, has been afforded fair treatment through Debtor’s various confirmed plans and is on course in this ease to have its allowed secured claim paid in full. Furthermore, Midwest is bound to the treatment afforded to it under Debt- or’s confirmed Plan in light of § 1327 and res judicata. See § 1327(a) (2010) (“The provisions of a confirmed plan bind the debtor and each creditor, .... whether or not such creditor has objected to, has accepted, or has rejected the plan.”); United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010); In re Davis, C/A No. 10-02249-JW, 2010 WL 5173187, at *2 (Bankr. D.S.C. Oct. 12, 2010) (holding that creditor was “bound by res judicata and [§ ] 1327 to accept its treatment under the confirmed Plan ... since it failed to object to confirmation, despite having been provided notice of the Plan and confirmation hearing, and failed to appeal the confirmation order”); In re Durham, 260 B.R. 383, 386 (Bankr.D.S.C.2001). “If a [C]hapter 13 plan provides for the curing of a pre-petition default on a secured creditor’s claim, the secured creditor will be bound by the terms of the plan if it is confirmed ... [and confirmation of the plan] precludes a secured creditor from enforcing its lien with respect to the prepetition default.” In re Underhill, 425 B.R. 614, 618 (Bankr.D.Utah 2010). Debtor’s confirmed Plan provides for full payment, plus interest, of Midwest’s allowed secured claim — the basis of which is Debtor’s pre-petition default — and will ultimately result in Midwest receiving over $85,000.00 upon completion of the Plan. Specifically, Midwest is" }, { "docid": "17583615", "title": "", "text": "plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.” Id. Confirmation of a Chapter 13 plan is essentially an adjudication of litigation over the issues of the classification and treatment of claims provided for in a proposed chapter 13 plan, and is res judicata on those issues. Ford Motor Credit Co. v. Bankr.Estate of Parmenter (In re Parmenter), 527 F.3d 606, 609 (6th Cir.2008); In re Stevens, 130 F.3d 1027, 1029 (11th Cir.1997). A confirmation order is a final judgment. U.S. Aid Funds, Inc. v. Espinosa, — U.S. -, 130 S.Ct. 1367, 1376, 176 L.Ed.2d 158 (2010). The binding effect of a plan pursuant to § 1327 supports the important concept of finality. See id. As one court has explained, “once a plan is confirmed, it is res judicata to all issues that were or could have been brought prior to confirmation.” In re Cruz, 253 B.R. 638, 641 (Bankr.D.N.J.2000). Similarly, another court denied a debtor’s post-confirmation modification and a motion to determine secured status of a second priority mortgage claim by stating that “[s]ection 1327 binds the debtor and the secured creditor to the treatment provided in the confirmed plan.” In re Rutt, 457 B.R. 97, 101 (Bankr.D.Colo.2010). Here, the only request before the Court is Debtor’s Motion. The requested relief is not proposed as a post-confirmation plan modification or a motion to set aside or reconsider the confirmation order. Although there are many potential open issues as to whether a debtor may strip a wholly unsecured mortgage lien post-confirmation, Debtor’s request can not be granted in this context based on the res judicata effect of the plan. Debtor s brief relies on Rule 3008 and § 502(j) as the basis to allow the Court to reclassify BAC’s second priority lien. However, Debtor fails to establish why reconsideration of BAC’s claim is appropriate or how to handle the confirmed plan providing contradictory treatment. Further, the caselaw in support of Debtor’s position" }, { "docid": "3106125", "title": "", "text": "the question of plan confirmation. ... The trustee is charged with serving the interests of all creditors, secured and unsecured, ... Thus, not only did the trustee have the right to appear, he had the obligation to appear and to object.” Meyer v. Hill (In re Hill), 268 B.R. 548, 554-55 (9th Cir. BAP 2001); see also Searles v. Riley (In re Searles), 317 B.R. 368, 374 (9th Cir. BAP 2004) (“the chapter 13 trustee has a duty to appear and be heard on plan confirmation ... ”); In re Jordan, 555 B.R. 636, 655 n.15 (Bankr. S.D. Ohio 2016) (citing and quoting In re Hill). One court has. explained why chapter 13 trustees must take a position on plan confirmation: Unsecured creditors often have such small claims and such a low expectation of any payment that they do not retain counsel and they do not object to confirmation. The Chapter 13 standing trustee is paid from the bankruptcy estate, and the trustee has fiduciary duties to creditors. The trustee is clearly required to “appear and be heard” at any confirmation hearing .... [T]he requirement that the trustee “be heard” suggests that the trustee must make a recommendation for or against confirmation. ... The trustee may not equivocate about confirmation. The trustee must either recommend confirmation or object to confirmation. The Chapter 13 standing trustee should thus review all Chapter 13 plans in detail and should file objections to confirmation and claimed exemptions where warranted. . In re Foulk, 134 B.R. 929, 931 (Bankr. D. Neb. 1991). Imposing a duty on chapter 13 trustees to object to plans whenever appropriate is necessary to permit the bankruptcy court to do its job. The Supreme Court has held that the bankruptcy court should not approve a plan providing for the discharge of student loans without making a determination of “undue hardship,” even if the student loan creditor does not object to plan confirmation. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 278, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010) (“to comply with § 523(a)(8)’s directive, the bankruptcy court must make" }, { "docid": "19445866", "title": "", "text": "plan. The City is therefore correct that confirmation of the plan did not eliminate its lien on Shannon's car. A lien that is not treated in a plan generally passes through the bankruptcy case unaffected. See, e.g., In re Pajian , 785 F.3d 1161, 1163 (7th Cir. 2015) ; In re Penrod , 50 F.3d 459, 461 (7th Cir. 1995) ; In re Turner , 558 B.R. 269, 278 (Bankr. N.D. Ill. 2016). This does not mean, however, that the City could ignore the confirmation process and force Shannon to amend the confirmed plan to pay the full amount it now seeks as a secured claim. Section 1327(a) of the Bankruptcy Code provides that the \"provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.\" 11 U.S.C. § 1327(a). In United Student Aid Funds, Inc. v. Espinosa , 559 U.S. 260, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010), the Supreme Court held that a provision in a confirmed plan bound a creditor who had actual notice of the bankruptcy, filed a proof of claim, but failed to raise a timely objection. Id. at 275, 130 S.Ct. 1367. The Seventh Circuit was enforcing confirmed plans long before Espinosa . See, e.g., Bartlett v. Fifth Third Bank , 619 F. App'x 525, 528 (7th Cir. 2015) (a confirmed plan can only be attacked by a party with no adequate notice of a bankruptcy proceeding); In re Harvey , 213 F.3d 318, 321 (7th Cir. 2000) (a confirmed plan is like a court-approved contract or consent decree and binds both the debtor and all the creditors); In re Pence , 905 F.2d 1107, 1109 (7th Cir. 1990) (sophisticated creditor who allegedly did not receive notice of confirmation hearing but had actual notice of bankruptcy was not entitled to avoid binding effect of the reorganization plan). The City is bound by the terms of Shannon's confirmed plan, and that plan treats its claim" } ]

[ { "docid": "23039983", "title": "", "text": "Commerce suspended liquidation of Juice Farms’ orange juice entries. While suspension orders remained in effect, Customs erroneously liquidated twenty entries of Juice Farms’ orange juice. These liquidations covered juice imported from June 1987 to May 1990. Customs issued bulletin notices on the twenty liquidations at the cus-tomshouse through which Juice Farms imported 50% of its orange juice. Because Commerce had ordered suspension of liquidations on Brazilian orange juice, Juice Farms did not check for bulletin notices. Juice Farms learned of the liquidations in 1993, after the administrative review proceedings concluded. At that time, Juice Farms requested that Customs refund antidumping duty deposits for the twenty entries. On July 13, 1993, Customs denied Juice Farms’ refund request because the twenty entries were already liquidated. On October 4, 1993, Juice Farms protested the liquidations. Customs denied this protest as untimely. Juice Farms filed suit in the Court of International Trade, challenging the erroneous liquidations. The Government sought dismissal of this suit because Juice Farms had not timely protested the liquidations. The Court of International Trade granted the Government’s motion to dismiss on these grounds. Juice Farms appeals to this court. DECISIONS This court reviews the Court of International Trade’s decision to grant the Government’s motion to dismiss de novo as a question of law. See, e.g., Transpac Drilling Venture v. United States, 16 F.3d 383, 387 (Fed.Cir.), cert. denied, — U.S. -, 115 S.Ct. 79, 130 L.Ed.2d 33 (1994); Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991). Jurisdiction under 28 U.S.C. § 1581(a) Under the Government’s challenge, Juice Farms bears the burden of proving jurisdiction. Lowa, Ltd. v. United States, 561 F.Supp. 441, 443 (Ct. Int’l Trade 1983), aff'd, 724 F.2d 121 (Fed.Cir.1984). The Court of International Trade has exclusive jurisdiction over “any civil action commenced to contest the denial of a protest, in whole or in part.” 28 U.S.C. § 1581(a). To challenge the denial of a protest, the importer must file a protest within ninety days of a liquidation decision, otherwise that decision becomes final. 19 U.S.C. § 1514(a); see Star Sales & Distrib. Corp. v. United States, 663" } ]

[ { "docid": "16602616", "title": "", "text": "residual jurisdiction. Defendants maintain that plaintiffs have an adequate remedy under 28 U.S.C. § 1581(0. That is, if the investigation ultimately results in a final affirmative antidumping duty determination and an antidumping duty order is published, plaintiffs will have an opportunity to contest Commerce’s decision to continue the investigation. That decision would be subsumed in the final appealable determination. Plaintiffs respond by arguing that post-investigation judicial review pursuant to 28 U.S.C. § 1581(c) is manifestly inadequate because mere continuation of the investigation will cause irreparable harm whether or not the final determination is adverse. Section 1581(i)(4) may be invoked as a basis for subject matter jurisdiction when another subsection of § 1581 is unavailable or the remedy provided by the other subsection is “manifestly inadequate.” See National Corn Growers Ass’n v. Baker, 840 F.2d 1547, 1557 (Fed. Cir. 1988); Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987), cert. denied, 484 U.S. 1041 (1988). Such residual jurisdiction is available if Congress has not defined another avenue for judicial review or if Congress has not precluded it entirely. See Macmillan Bloedel Ltd. v. United States, 16 CIT 331, 332, Slip Op. 92-67 at 3-4 (May 8, 1992). Although jurisdiction is limited in cases where the complainant seeks relief during the pendency of an investigation and the determination is finally reviewable under 28 U.S.C. § 1581(c), see id. at 332, Slip Op. 92-67 at 4, jurisdiction to review interim decisions has been found when failure to renew the interim determination will effectively preclude review. See id. at 332, Slip Op. 92-67 at 3-4. The United States does not seriously dispute that Asociacion Colombiana de Exportadores de Flores (Asocoflores) v. United States, 13 CIT 584, 717 F. Supp. 847 (1989), aff’d, 903 F.2d 1655 (Fed. Cir. 1990), and Carnation Enterprises v. United States Dep’t of Commerce, 13 CIT 604, 719 F. Supp. 1084 (1989), require that the court take jurisdiction. In Asocoflores, the court found jurisdiction under § 1581(i) where plaintiff sought to enjoin Commerce from proceeding with an allegedly unlawful administrative review. Plaintiffs, numerous small businesses, alleged hardship" }, { "docid": "18643874", "title": "", "text": "importation may importers challenge a Treasury determination rendered in response to a 516 petition, pursuant to 28 U.S.C. § 1581(a), thus jurisdiction under this section is currently unavailable to plaintiffs. in their motion for preliminary injunction and in opposition to defendants’ motion to dismiss, plaintiffs argued only that jurisdiction was available under § 1581(i)(4), rather than under § 1581(h), to enable them to seek injunctive relief. See 28 U.S.C. § 2643(c)(4) (1988) (limitingremedy under § 1681(h) to declaratory relief). At oral argument, plaintiffs abandoned their § 1681(i) argument and contended that § 1681(h) was the proper basis for jurisdiction. The court notes that § 1681(i) is the residual jurisdiction provision, and may only be invoked when another subsection of § 1681 is unavailable or the remedy provided by another subsection is “manifestly inadequate.” See National Corn Growers Ass’n v. Baker, 840 F.2d 1647, 1657 (Fed. Cir. 1988) Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987), cert. denied, 484 U.S. 1041 (1988). An importer has a broader range of remedies available to challenge a Treasury decision than does a domestic party. See 19 U.S.C. §§ 1514-1615 (procedures for importer protest of Customs decisions); 28 U.S.C. §§ 1581(h) (providing for pre-importation review), 1581(i) (residual jurisdiction provision), 2637(a) (allowing filing of civil action after liquidated duties paid), and 2637(c) (1988) (allowing § 1581(h) jurisdiction where administrative remedies not yet exhausted). A domestic “interested party” may protest a Customs decision only through the 516 petition process. See 19 U.S.C. § 1516 (procedures for interested party petition); 28 U.S.C. § 2637(b) (requiring exhaustion of administrative remedies under § 1516 before suit filed). For the same reasons as discussed in the text, defendants’ contention that the controversy is not ripe must also fail. Where there is no doubt that the ruling involved will apply to articles that plaintiff is going to import, the legal dispute is sufficiently concrete. Association of Food Indus., Inc. v. Von Raab, 9 CIT 626, 627, 624 F. Supp. 1567, 1558 (1985). Plaintiffs correctly argue that the controversy is ripe because T.D. 94-5 presents a new regulatory" }, { "docid": "13424390", "title": "", "text": "oral argument at 22-23. Furthermore, had this document been a protest, it would have been premature. As stated above, a §1520(d) petition must come before a protest. Prior to denial of a § 1520(d) claim, Customs has made no decision which can be protested. Given that (1) the expressed intent of Power One was to file a post-entry NAFTA claim pursuant to 19 C.F.R. §§ 181.31 and 181.32, both of which address the right to and filing procedure for a post-importation duty refund claim available pursuant to 19 U.S.C. §1520(d); (2) that this expressed intent negates the document’s ability to apprise Customs of an intent to file a protest; and (3) that if this claim was a protest it would have been premature, the Court concludes that this submission was a §1520(d) petition and not a §1514 protest. Therefore, Plaintiffs’ argument fails. B The Court Lacks Jurisdiction Over This Matter Under 28 U.S.C. §1581(i) Because Jurisdiction Under Another Subsection Of §1581 Was Available. Section 1581(i) enables the Court to hear a case when other means of obtaining judicial review are manifestly inadequate. Star Sales & Distrib. Corp. v. United States, 10 CIT 709, 711, 663 F. Supp. 1127, 1129 (1986). “‘[S]ection 1581(i) jurisdiction may not be invoked when jurisdiction under another subsection of §1581 is or could have been available.’” National Corn Growers Ass’n v. Baker, 840 F.2d 1547, 1557 (Fed. Cir. 1988) (quoting Miller and Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1988). Here, Plaintiffs could have invoked the Court’s jurisdiction under 28 U.S.C. §1581(a) if it had exhausted its administrative remedies by protesting the Customs decisions, as set forth in the previous section. Accordingly, the Court finds that jurisdiction was not properly invoked by Plaintiffs under 28 U.S.C. §1581(i). C Plaintiffs’ Claim That Customs Failed to Follow Administrative Procedures in Denying the §1520(d) Petition Does Not Change the Result That the Denial Must Have Been Protested Prior to Coming to this Court. Plaintiffs argue that this Court has jurisdiction under 28 U.S.C. §1581(i) because Customs failed to properly administer and enforce the laws providing for" }, { "docid": "22258517", "title": "", "text": "Prod. Div. y. United States, 104 F.3d 1309, 1312 (FedUir.1997); Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987). At the time that NEC filed its complaint, it could not invoke the trial court’s § 1581(c) jurisdiction because the antidumping investigation had not yet been completed. Nevertheless, because subsection (c) specifically provides for review of any civil action commenced under section 516A of the Tariff Act of 1930, argues the Government, NEC should have waited until Commerce completed its review, and then raised its due process concerns. The trial court rejected the Government’s view, and characterized the suggested approach as a “fools errand.” The trial court is correct. Requiring NEC to appeal from the conclusion of an investigation that, allegedly, was preordained because of impermissible prejudgment is a classic example of a remedy that was “manifestly inadequate.” See Pac Fung Feather Co. v. United States, 111 F.3d 114, 116 (Fed.Cir. 1997) (“[T]he preordained ruling available to importers under section 1581(h) would be manifestly inadequate.”); Hylsa v. United States, No. 97-12-02168, 1998 WL 51731, at *3 (Ct. Int’l Trade, Feb. 3, 1998) (when a plaintiff alleges that the outcome is preordained, the case “is the very type of situation which is intended to be addressed under 28 U.S.C. § 1581(i)”); Luggage & Leather Goods Mfrs. of Am. v. United States, 588 F.Supp. 1413, 1420-21 (Ct. Int’l Trade 1984); United States Cane Sugar Refiners’ Ass’n v. Block, 544 F.Supp. 883, 887 (Ct. Int’l Trade 1982), aff'd on other grounds, 69 C.C.P.A. 172, 683 F.2d 399 (1982). This is not a ease in which NEC is attempting to “sail past carefully constructed limitations simply by invoking other and more general legislation.” National Com Growers Ass’n v. Baker, 840 F.2d 1547, 1558 (Fed.Cir.1988); see St. Paul Fire & Marine Ins. Co. v. United States, 959 F.2d 960, 963-64 (Fed.Cir.1992) (finding jurisdiction proper under 1581(i)). Instead, NEC is attempting to adjudicate an issue that goes to the very heart of the administrative system — neutrality—using the only adequate avenue available. See McCarthy v. Madigan, 503 U.S. 140, 148, 112 S.Ct. 1081, 117 L.Ed.2d" }, { "docid": "18620434", "title": "", "text": "determine never to complete a section 751 review simply to escape judicial scrutiny”), aff’d, 831 F.2d 1028 (Fed. Cir. 1987). Commerce argues that because Cordoaria may proceed under § 1581(c) after Commerce and ITC have completed their final determinations, an adequate remedy exists, and plaintiffs are thus precluded from obtaining review under § 1581(i). Commerce has misunderstood the source of the injury. Presently, petitioners may repeatedly withdraw and resubmit identical antidumping petitions without penalty before Commerce makes a sufficiency determination. No final administrative decision need ever be made. This situation is very akin to that of UST, Inc. and Nakajima All. Rather than involving interim decision-making or even a pending proceeding, this case involves the agency’s reluctance to proceed or failure to act and is thus addressable only under § 1581(i). Plaintiffs have no other remedy than resort to this court under § 1581(i) to address alleged failings in the proper administration of the laws relating to unfair trade and providing for revenue from imports or for other tariffs. See 28 U.S.C. § 1581(i)(4) as it relates to § 1581(c) and § 1581(i)(1), (2). As there is no indication that Congress intended to preclude review in such a situation, but rather specifically provided for it, jurisdiction lies in this court to review Commerce’s actions. No jurisdiction exists, however, over ITC under § 1581(i). Commerce alone determines petition sufficiency. 19 U.S.C. § 1673a(c) (1988); 19 C.F.R. § 353.13(a) (1992). ITC’s mandate in this regard does not involve sufficiency determinations, but merely initiation of preliminary investigations after consultation with Commerce. 19 C.F.R. § 207.12 (1992); see Republic Steel Co. v. United States, 4 CIT 33, 36, 544 F. Supp. 901, 904 (1982). The relief plaintiffs seek may not be obtained from ITC. B. Alternative Jurisdictional Grounds: Sections 1585, 1651(a) and 2643(c)(1), title 28, United States Code, do not provide independent grounds for jurisdiction. Kidco, Inc. v. United States, 4 CIT 103, 104 (1982) (finding 28 U.S.C. § 1585 does not afford independent basis of subject matter jurisdiction where none otherwise exists); Rhone Poulenc, Inc. v. United States, 880 F.2d 401, 407 (Fed." }, { "docid": "22258516", "title": "", "text": "(a) through (h) assign exclusive jurisdiction to the Court of International Trade regarding civil actions against the United States in a variety of matters affecting foreign commerce, including the antidumping laws. Subsection (i) contains what has been called a residual provision that grants to the Court of International Trade exclusive jurisdiction over “any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for —(4) administration and enforcement with respect to the matters referred to in ... subsections (a)-(h) of this section.” 28 U.S.C. § 1581(i)(4) (1994). The subsection contains a caveat: subsection (i) “shall not confer jurisdiction over an antidumping or countervailing duty determination which is reviewable ... by the Court of International Trade under section 516A(a) of the Tariff Act of 1930.” Id. In light of this caveat, this court has interpreted the jurisdiction provided by subsection (i) to be available only when jurisdiction under another subsection of 1581 is either unavailable or, if available, “manifestly inadequate.”- See Shakeproof Indus. Prod. Div. y. United States, 104 F.3d 1309, 1312 (FedUir.1997); Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987). At the time that NEC filed its complaint, it could not invoke the trial court’s § 1581(c) jurisdiction because the antidumping investigation had not yet been completed. Nevertheless, because subsection (c) specifically provides for review of any civil action commenced under section 516A of the Tariff Act of 1930, argues the Government, NEC should have waited until Commerce completed its review, and then raised its due process concerns. The trial court rejected the Government’s view, and characterized the suggested approach as a “fools errand.” The trial court is correct. Requiring NEC to appeal from the conclusion of an investigation that, allegedly, was preordained because of impermissible prejudgment is a classic example of a remedy that was “manifestly inadequate.” See Pac Fung Feather Co. v. United States, 111 F.3d 114, 116 (Fed.Cir. 1997) (“[T]he preordained ruling available to importers under section 1581(h) would be manifestly inadequate.”); Hylsa v. United States, No. 97-12-02168, 1998 WL 51731," }, { "docid": "16882002", "title": "", "text": "entries, takes the matter out of the umbrella of § 1581(c) jurisdiction because § 1581(c) covers challenges to the results of antidumping determination. Since the determination is not challenged, Defendant errs in its belief that Plaintiff could only be afforded relief under this subsection. C. The Court Has Jurisdiction Pursuant to 28 U.S.C. § 1581(i). The Court of International Trade is an Article III court of limited jurisdiction and “is empowered to offer complete relief in all actions within its jurisdiction except where particular forms of relief are explicitly barred.” Krupp Stahl AG v United States 4 CIT 244, 247 (1982). Section 1581(i) gives this court “broad residual authority over civil actions arising out of federal statutes governing import transactions. . . .” Conoco, Inc. v. United States Foreign-Trade Zones Bd., 18 F.3d 1581, 1588 (Fed. Cir. 1994); 28 U.S.C. § 1681G). Section 1581(i) provides that [T]he Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration and enforcement with respect to the matters referred to in paragraphs (1) — (3) of this subsection and subsections (a) — (h) of this section. This subsection shall not confer jurisdiction over an antidump-ing or countervailing duty determination which is reviewable ... by the Court of International Trade under section 516A(a) of the Tariff Act of 1930. . . . 28 U.S.C. § 1581G). The legislative history regarding section 1581(i)(4) indicates that this court is not “prohibited from entertaining a civil action relating to an antidumping proceeding so long as the action does not involve a challenge to a determination specified in 516A of the Tariff Act of 1930.” House Judiciary Committee in H.R. Rep. No. 96-1235," }, { "docid": "18696510", "title": "", "text": "Corp. v. United States, 8 CIT 100, 102, 593 F. Supp. 415, 417-18 (1984). Plaintiffs predicate jurisdiction in this action on 28 U.S.C. § 1581(i) (1988). Plaintiffs’ Briefat 6-8. Section 1581(i), the residual jurisdiction provision, confers exclusive jurisdiction upon the court concerning issues relating to the antidumping duty law which are not specifically covered by other subparagraphs of section 1581. This provision may be invoked as a basis for subject matter jurisdiction where another subsection of § 1581 is unavailable or when the remedy provided by the other subsection would be “manifestly inadequate.” See Kemira I, 18 CIT at 689-90, Slip Op. 94-120 at 5-8. See also Asociacion Colombiana de Exportadores de Flores (Asocoflores) v. United States, 13 CIT 584, 717 F. Supp. 847 (1989), aff’d, 903 F.2d 1555 (Fed. Cir. 1990); Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987), cert. denied, 484 U.S. 1041 (1988). Plaintiffs claim that jurisdiction pursuant to 28 U.S.C. § 1581(c) (1988) would be manifestly inadequate as, if plaintiffs are required to participate in an administrative review in order to invoke the court’s jurisdiction, their challenge with regard to the legality of the review would be moot. Plaintiffs’ Brief at 8. In support of their claim, plaintiffs cite several cases including, Kemira I, 18 CIT at 690, Slip Op. 94-120 at 7-8, and Asocoflores, 13 CIT at 586-87, 717 F. Supp. at 850. Although jurisdiction wouldbe proper under 28 U.S.C. § 1581(i) in the context at issue, pursuant to 28 U.S.C. § 2636(h) (1988), any cause of action brought under 28 U.S.C. § 1581(i) must be brought within two years of the date that the cause of action first accrues. Accordingly, plaintiffs’ cause of action is no longer judicially cognizable and plaintiffs are without recourse against Commerce with respect to 1992. With regard to 1993, plaintiffs may have had a cause of action against Commerce for failure to revoke the order on June 1, 1993 pursuant to § 353.25(d)(4)(iii). However, Commerce published a notice on September 30, 1993 announcing its determination not to revoke the Order. Determination Not to Revoke" }, { "docid": "8351189", "title": "", "text": "Defendant further articulates that although § 1581(i) jurisdiction can be invoked in a situation where the remedy provided for under § 1581(c) would be \"manifestly inadequate,” citing Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987), plaintiffs have failed to demonstrate such showing here. The general jurisdiction of this Court lies under 28 U.S.C. § 1581, and the Court has exclusive jurisdiction over specific types of civil actions pursuant to § 1581 subsections (a)-(h). Miller & Co. v. United States, 824 F.2d 961 (Fed. Cir. 1987). Concerning these specific jurisdictional grounds, it has been observed: [W]here Congress has prescribed in great detail a particular track for a claimant to follow, in administrative or judicial proceedings, and particularly where the claim is against the United States or its officials in their official capacity, the remedy will be construed as exclusive without a specific statement to that effect. National Corn Growers Association v. James Baker, Nos. 87-1147, 87-1148, 87-1149, and 87-1160, Slip Op. at 28 (Fed. Cir. Feb. 9, 1988). Section 1581(i) has been recognized as the \"residual jurisdiction” subsection. It \"may not be invoked when jurisdiction under another subsection of § 1581 is or could have been available, unless the remedy provided under that other subsection would be manifestly inadequate.” Miller & Co., 824 F.2d at 963. In situations where a cause of action might arise where the contested agency decision occurs between the final administrative determination and the administrative 751 review, a claimant may be able to file its action under the court’s broad residual jurisdiction under § 1581(i). UST. Inc. v. United States, 10 CIT 648, 651, 648 F. Supp. 1, 4 (1986); aff’d on other grounds, 831 F.2d 1028 (Fed. Cir. 1987); Ceramica Regiomontana, S.A. v. United States, 5 CIT 23, 27-28, 557 F. Supp. 596, 600 (1983). More relevant to the point, it has been held this Court has jurisdiction, under § 1581(i), to hear a cause of action arising from Commerce’s extended delays in completing and publishing its 751 review results after it has published its initiation of the review. UST, Inc.," }, { "docid": "13424391", "title": "", "text": "of obtaining judicial review are manifestly inadequate. Star Sales & Distrib. Corp. v. United States, 10 CIT 709, 711, 663 F. Supp. 1127, 1129 (1986). “‘[S]ection 1581(i) jurisdiction may not be invoked when jurisdiction under another subsection of §1581 is or could have been available.’” National Corn Growers Ass’n v. Baker, 840 F.2d 1547, 1557 (Fed. Cir. 1988) (quoting Miller and Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1988). Here, Plaintiffs could have invoked the Court’s jurisdiction under 28 U.S.C. §1581(a) if it had exhausted its administrative remedies by protesting the Customs decisions, as set forth in the previous section. Accordingly, the Court finds that jurisdiction was not properly invoked by Plaintiffs under 28 U.S.C. §1581(i). C Plaintiffs’ Claim That Customs Failed to Follow Administrative Procedures in Denying the §1520(d) Petition Does Not Change the Result That the Denial Must Have Been Protested Prior to Coming to this Court. Plaintiffs argue that this Court has jurisdiction under 28 U.S.C. §1581(i) because Customs failed to properly administer and enforce the laws providing for revenue from imports and the administration and enforcement of the customs laws and regulations. Plaintiffs’ Opposition at 16-17. Plaintiffs claim that Customs failed in this regard by improperly denying Power One’s duty refund claim without meeting the requirements of 19 C.F.R. §§ 181.75 and 181.76. Id. at 16-17. This argument would have been properly made in a §1514 protest of the denial of Plaintiffs’ § 1520(d) petition. It is in that proceeding that Customs’ actions in denying the petition should first be scrutinized. This Court cannot now entertain that argument, because §1581(i) jurisdiction cannot attach, for the reasons set forth above. If Plaintiffs had shown that pursuing the administrative remedies available to it, namely the §1514 protest, would have been futile, then this case might not be dismissed for failure to exhaust administrative remedies. Rhone Poulenc S.A. v. United States, 7 CIT 133, 135, 583 F.Supp. 607, 610 (1984); Ogletree v. McNamara, 449 F.2d 93, 99 (6th Cir. 1971). However, Plaintiffs made no such claim in this case. Furthermore, Customs has shown that further pursuance" }, { "docid": "991939", "title": "", "text": "may be subject to an antidumping duty order, Customs makes factual findings to ascertain what the merchandise is, and whether it is described in an order. See Marcel Watch Co. v. United States, 11 F.3d 1054, 1056 (Fed.Cir.1993) (stating that Customs makes similar factual determinations to classify merchandise under tariff headings). If applicable, Customs then assesses the appropriate antidumping duty. 19 U.S.C. § 1673e(a)(l) (1994); 19 C.F.R. § 351.211(b)(1) (2001). Such findings of Customs as to “the classification and rate and amount of duties chargeable” are protestable to Customs under 19 U.S.C. § 1514(a)(2). Denial of protests are reviewable by the Court of International Trade. 28 U.S.C. § 1581(a) (1994) (Exclusive jurisdiction lies for actions “commenced to contest the denial of a protest ... under section 515 of the Tariff Act of 1930.”) In this case, the court, relying on our decision in Sandvik Steel Co. v. United States, 164 F.3d 596 (Fed.Cir.1998) (consolidating appeals of Sandvik Steel Co. v. United States, 957 F.Supp. 276 (Ct. Int’l Trade 1997), and Fujitsu Ten Corp. of Am. v. United States, 957 F.Supp. 245 (Ct. Int’l Trade 1997)), stated that antidumping determinations generally may not be protested to Customs, and therefore this Customs error requires a scope inquiry by Commerce. In Sandvik, we affirmed the Court of International Trade’s dismissal for lack of jurisdiction when importers Sandvik Steel Co. (“Sandvik”) and Fujitsu Ten Corp. (“Fujitsu”) failed to exhaust their administrative remedies. Sandvik imported composite steel tubes with an inner tube of carbon steel covered by stainless steel of which the inner portion constituted seventy-five percent of the weight of the tube. Sandvik, 957 F.Supp. at 277. The antidumping duty order cov ered “stainless steel hollow products ... including tubes ... containing over 11.5 percent chromium by weight.” Id. Sand-vik’s complaint specifically alleged that the tubes were not encompassed by the order because its tubes contained less than five percent chromium by weight. Id. Fujitsu imported “front ends,” electronic parts used with automobile radio tuners. Sandvik, 164 F.3d at 598. Fujitsu alleged that the front ends were not covered in an antidumping order on" }, { "docid": "18696509", "title": "", "text": "deadline. 19 C.F.R. § 353.25(d) (4) (iii). Consequently, Commerce was not obligated to revoke the Order. Hence, with regard to 1991 and 1994, plaintiffs’ § 353.25(d)(4)(iii) argument fails. In 1992, Commerce concedes that it failed to publish a notice of intent to revoke the Order. Further, the facts show that prior to expiration of the Order’s fifth annual anniversary month, no interested party requested an administrative review of the Order or questioned Commerce’s failure to publish a notice of intent to revoke. Therefore, pursuant to § 353.25(d)(4)(iii), plaintiffs had a cause of action against Commerce, on June 1, 1992, for failure to revoke the Order. However, plaintiffs are precluded from pursuing the matter because they did not contest Commerce’s failure to revoke until September 9, 1994 — more than two years after the date that their cause of action first accrued. Plaintiffs’ carry the burden of demonstrating that the Court of International Trade has jurisdiction to rule on their claim. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Smith Corona Group. SCM Corp. v. United States, 8 CIT 100, 102, 593 F. Supp. 415, 417-18 (1984). Plaintiffs predicate jurisdiction in this action on 28 U.S.C. § 1581(i) (1988). Plaintiffs’ Briefat 6-8. Section 1581(i), the residual jurisdiction provision, confers exclusive jurisdiction upon the court concerning issues relating to the antidumping duty law which are not specifically covered by other subparagraphs of section 1581. This provision may be invoked as a basis for subject matter jurisdiction where another subsection of § 1581 is unavailable or when the remedy provided by the other subsection would be “manifestly inadequate.” See Kemira I, 18 CIT at 689-90, Slip Op. 94-120 at 5-8. See also Asociacion Colombiana de Exportadores de Flores (Asocoflores) v. United States, 13 CIT 584, 717 F. Supp. 847 (1989), aff’d, 903 F.2d 1555 (Fed. Cir. 1990); Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987), cert. denied, 484 U.S. 1041 (1988). Plaintiffs claim that jurisdiction pursuant to 28 U.S.C. § 1581(c) (1988) would be manifestly inadequate as, if plaintiffs are required to participate in an" }, { "docid": "18672156", "title": "", "text": "section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration and enforcement with respect to the matters referred to in paragraphs (l)-(3) of this subsection and subsections (a)-(h) of this section. This subsection shall not confer jurisdiction over an antidumping or countervailing duty determination which is reviewable either by the Court of International Trade under section 516A(a) of the Tariff Act of 1930 or by a binational panel under article 1904 of the United States-Canada Free-Trade Agreement and section 516A(g) of the Tariff Act of 1930. Customs Court Act of 1980, Pub. L. No. 96-417, 94 Stat. 1728, as amended, 28 U.S.C. § 1581(i) (1988). It is well-settled that litigants may not invoke jurisdiction under § 1581(i) “when jurisdiction under another subsection of § 1581 is or could have been available, unless the remedy provided under that other subsection would be manifestly inadequate.” Miller & Co. v. United States, 5 Fed. Cir. (T) 122, 124, 824 F.2d 961, 963 (1987), cert. denied, 484 U.S. 1041 (1988) (emphasis added); accord Conoco, Inc. v. United States Foreign-Trade Zones Bd., 16 CIT 231, 288, 790 F. Supp. 279, 288 (1992), appeal docketed, No. 92-1396 (Fed. Cir. June 8, 1992). This Court finds the remedies provided for in § 1581(a)-(h) are unavailable in an action challenging the application of 19 C.F.R. § 353.53a(d)(l). As discussed previously, § 1581(a) is inapplicable to actions challenging the regulation’s application. Similarly, § 1581(c) cannot apply to such actions because the application of the regulation does “not culminate in a final determination enumerated in 19 U.S.C. § 1516a" }, { "docid": "22377806", "title": "", "text": "tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration and enforcement with respect to the matters referred to in paragraphs (l)-(3) of this subsection and subsections (a)-(h) of this section. This subsection shall not confer jurisdiction over an antidumping or countervailing duty determination which is renewable either by the Court of International Trade under section 516A(a) of the Tariff Act of 1930. 28 U.S.C. § 1581(i) (2000). Section 1581(i) (subsection (i)) supplies jurisdiction only for instances when no other subsection of that section “is or could have been available,” unless the other subsection provided no more than a manifestly inadequate remedy. Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed.Cir.1992) (quoting Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987), cert. denied, 484 U.S. 1041, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988)). Commerce contends that 28 U.S.C. § 1581(c) (subsection (c)) could have been available to establish jurisdiction in this case if Consolidated had participated in the administrative review that produced the final results. Subsection (c) grants the Court of International Trade jurisdiction over actions brought under section 516A of the Tariff Act of 1930, which includes challenges to the final results of an administrative review by a participant in that review. See 28 U.S.C. § 1581(c) (2000); 19 U.S.C. § 1516a(a)(2)(B)(iii) (2000). Subsection (i) specifically states that “[t]his subsection shall not confer jurisdiction over an anti-dumping or countervailing duty determination which is reviewable ... by the Court of International Trade under section 516A(a) of the Tariff Act of 1930.” 28 U.S.C. § 1581(i) (2000). According to Commerce, Consolidated cannot maintain this action under subsection (i) because it could have brought the same action under subsection (e) if it had joined the administrative review process. In other words, Commerce asks this court to bar Consolidated from jurisdiction under subsection (i) because it did not participate in the administrative" }, { "docid": "8351188", "title": "", "text": "continued the action. The parties were directed to submit bi-monthly reports and to appear in open court every month until the completion of the subject 751 reviews. The Court also reserved its decision on applicant-intervenor’s motion to intervene and continued applicant-intervenor’s amicus curiae status. Discussion Plaintiffs have filed their complaint seeking a writ of mandamus directing Commerce to complete and publish the preliminary and final 751 review results concerning Japanese portable electric typewriters. Plaintiffs bring their action pursuant to the All Writs Act, 28 U.S.C. § 1651(a) and section 10(e)(1) of the Administrative Procedure Act, 5 U.S.C. § 706(1) and claim the Court has exclusive jurisdiction over this action pursuant to 28 U.S.C. § 1581(i). Defendants argue plaintiffs’ action is reviewable under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c), therefore resort to jurisdiction under section 1581(i) is impermissible as set forth in case law and the statutes. Defendants state that because plaintiffs’ jurisdictional status lies under section 1516a and 1581(c), these provisions \"represent the exclusive means” by which plaintiffs must challenge Commerce’s actions. Defendant further articulates that although § 1581(i) jurisdiction can be invoked in a situation where the remedy provided for under § 1581(c) would be \"manifestly inadequate,” citing Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987), plaintiffs have failed to demonstrate such showing here. The general jurisdiction of this Court lies under 28 U.S.C. § 1581, and the Court has exclusive jurisdiction over specific types of civil actions pursuant to § 1581 subsections (a)-(h). Miller & Co. v. United States, 824 F.2d 961 (Fed. Cir. 1987). Concerning these specific jurisdictional grounds, it has been observed: [W]here Congress has prescribed in great detail a particular track for a claimant to follow, in administrative or judicial proceedings, and particularly where the claim is against the United States or its officials in their official capacity, the remedy will be construed as exclusive without a specific statement to that effect. National Corn Growers Association v. James Baker, Nos. 87-1147, 87-1148, 87-1149, and 87-1160, Slip Op. at 28 (Fed. Cir. Feb. 9, 1988). Section 1581(i) has" }, { "docid": "16602615", "title": "", "text": "Duty Determination: Uranium from the Former Union of Soviet Socialist Republics (USSR), 57 Fed. Reg. 11,064, 11,065 (Dep’t Comm. Apr. 1,1992). Commerce explained that it had been very difficult to communicate with the new republics. Commerce also restated its intention to continue the investigation. On March 30,1992, Commerce mailed the petition, initiation notice, questionnaire, and other memoranda to the governments of the independent republics. The permanent representatives of the independent states in Moscow were also served by hand with most of these documents. The deadline for submitting information was extended to April 15. The sovereign plaintiffs in this action have not responded to the questionnaires. Discussion 1. This court’s jurisdiction under 28 U.S.C. § 1581(i): Plaintiffs carry the burden of demonstrating that jurisdiction exists. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Smith Corona Group, SCM Corp. v. United States, 8 CIT 100, 102, 593 F. Supp. 415, 417-18 (1984). In this case, plaintiffs argue that the court has jurisdiction pursuant to 28 U.S.C. § 1581(i) (4), which sets forth the court’s residual jurisdiction. Defendants maintain that plaintiffs have an adequate remedy under 28 U.S.C. § 1581(0. That is, if the investigation ultimately results in a final affirmative antidumping duty determination and an antidumping duty order is published, plaintiffs will have an opportunity to contest Commerce’s decision to continue the investigation. That decision would be subsumed in the final appealable determination. Plaintiffs respond by arguing that post-investigation judicial review pursuant to 28 U.S.C. § 1581(c) is manifestly inadequate because mere continuation of the investigation will cause irreparable harm whether or not the final determination is adverse. Section 1581(i)(4) may be invoked as a basis for subject matter jurisdiction when another subsection of § 1581 is unavailable or the remedy provided by the other subsection is “manifestly inadequate.” See National Corn Growers Ass’n v. Baker, 840 F.2d 1547, 1557 (Fed. Cir. 1988); Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987), cert. denied, 484 U.S. 1041 (1988). Such residual jurisdiction is available if Congress has not defined another avenue for judicial review or if" }, { "docid": "16881998", "title": "", "text": "results of the administrative review because it contests the application or inapplicability of the determination’s results to its entries, a situation, it claims, where jurisdiction is proper only under § 1581(c). Under § 1581(c), the court has exclusive jurisdiction over any civil action commenced under section 516A of the Tariff Act of 1930. Pursuant to 28 U.S.C. § 2631(c) “[a] civil action contesting a determination listed in 516A of the Tariff act of 1930 may be commenced in the Court of International Trade by any interested party who was a party to the proceeding in connection with which the matter arose.” Defendant argues that Plaintiff is precluded from challenging the results of the antidumping determination because, although it qualified as an interested party, it did not participate in the administrative proceedings. The government’s position in this case is similar to the claim it made in Xerox Corp. v. United States, 118 F. Supp. 2d 1353, 1354 (CIT 2000) (“Xerox 7”). In Xerox I, the government claimed that the only method for parties to determine whether their goods were part of antidumping investigation was through a scope determination. This court stated that the ITA has and has had regulations . . . enabling importers like Xerox to file applications to determine whether particular products are within the purview of existing antidumping-duty orders. Also, Congress has provided for judicial review of such determinations. . . . Given, this approach, and the fact that Xerox did not follow it, the defendant takes the position that this court has no jurisdiction to grant any relief — pursuant to section 1581(a) or otherwise. Xerox I, 118 F. Supp. 2d at 1354. The CIT agreed with the government’s characterization that the plaintiff in Xerox 1 could have participated in the administrative review in order to ensure that its goods were not facially part of the antidumping determination. However, the Federal Circuit reversed and held that a scope determination was not the sole appropriate method by which a party could challenge Customs’ application of a dumping order to its goods when the party believed that Customs had" }, { "docid": "22377805", "title": "", "text": "the 1997 instructions. See Consolidated II, 182 F.Supp.2d at 1382-83. Commerce expressed its opinion that the trial court was in error. Nevertheless, to comply with the remand order, Commerce annulled the 1998 instructions and used the ad valorem rates in the 1997 instructions (from the final results) for liquidation of Consolidated’s FAG-manufactured AFB imports. In this appeal, Commerce challenges the trial court’s judgment on the merits in Consolidated I, and Consolidated challenges the trial court’s affirmance of Commerce’s second remand determination in Remand II. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (2000). II. Subject Matter Jurisdiction This court reviews the trial court’s subject matter jurisdiction ruling as a legal determination without deference. See JCM, Ltd. v. United States, 210 F.3d 1357, 1359 (Fed.Cir.2000). Consolidated sought jurisdiction under title 28’s residual jurisdiction provision: [T]he Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration and enforcement with respect to the matters referred to in paragraphs (l)-(3) of this subsection and subsections (a)-(h) of this section. This subsection shall not confer jurisdiction over an antidumping or countervailing duty determination which is renewable either by the Court of International Trade under section 516A(a) of the Tariff Act of 1930. 28 U.S.C. § 1581(i) (2000). Section 1581(i) (subsection (i)) supplies jurisdiction only for instances when no other subsection of that section “is or could have been available,” unless the other subsection provided no more than a manifestly inadequate remedy. Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed.Cir.1992) (quoting Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987), cert. denied, 484 U.S. 1041, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988)). Commerce" }, { "docid": "18850381", "title": "", "text": "be excluded from the an-tidumping duty order on iron castings from India. Certain Iron Construction Castings From India; Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Order in Accordance With Decision Upon Remand, 54 Fed. Reg. 18,562 (May 1, 1989). During oral argument, the Court was also informed that a third administrative review based on the allegedly invalid order has now been requested and may soon be initiated. Discussion I. Motion To Dismiss: The Indian exporters allege that the Court has jurisdiction under 28 U.S.C. § 1581(i) (1982). This is the residual jurisdiction of the Court, which may be invoked as a basis for subject matter jurisdiction where another subsection of section 1581 is unavailable or the remedy provided by the other subsection is \"manifestly inadequate.” National Corn Growers’ Ass’n v. Baker, 840 F.2d 1547, 1557 (Fed. Cir. 1988); Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987), cert. denied, 108 S. Ct. 773 (1988). Defendants argue that the action should be dismissed because the plaintiffs are attempting to circumvent the statutory schemé for judicial review after completion of an administrative review. Defendants argue that 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a specify \"the terms and conditions upon which the United States has waived its sovereign immunity in consenting to be sued in the Court of International Trade.” Georgetown Steel Corp. v. United States, 4 Fed. Cir. (T) 143, 147, 801 F.2d 1308, 1312 (1986). Section 1516a(a)(2)(B) lists several types of agency determinations that are explicitly subject to judicial review in the Court of International Trade, including the final results of administrative reviews. Defendants argue that the Indian exporters may challenge Commerce’s authority to conduct administrative reviews only after the reviews have been completed and the final results published in the Federal Register. Defendants thus urge that the exclusive means by which the Indian exporters may obtain judicial review is pursuant to 28 U.S.C. § 1581(c) (1982). Defendants also move to dismiss on the basis that the Indian exporters have not exhausted their administrative remedies before Commerce. Commerce is" }, { "docid": "16881997", "title": "", "text": "44 Fed. Reg. 69,273, 69,275 (Dec. 3, 1979). Customs’role in liquidating antidumping duties is ministerial. Customs has no authority to modify Commerce’s determination and may liquidate entries only at the rate set by Commerce. See Royal Business Machs., Inc. v. United States, 1 CIT 80, 87 & n.18 (1980). Plaintiff protested the assessment of antidumping duties under § 1514(a), and upon denial of the protest, brought suit under § 1581(a) and (i). Section 1514(a) is limited to “decisions of the Customs Service.” Because Customs has no authority to modify Commerce’s antidumping determination, only in limited circumstances may a plaintiff challenge Customs’ imposition of antidumping duties on its entries. In this case, Commerce sent liquidation instruction to Customs, which then imposed antidumping duties as directed by Commerce as part of its ministerial functions. The court has no jurisdiction pursuant to § 1581(a) for it was Commerce’s instructions, rather than an independent decision by Customs, which determined the antidump-ing rate. B. Jurisdiction Does Not Lie Under 28 U.S.C. § 1581(c). Defendant claims that Plaintiff functionally challenges the results of the administrative review because it contests the application or inapplicability of the determination’s results to its entries, a situation, it claims, where jurisdiction is proper only under § 1581(c). Under § 1581(c), the court has exclusive jurisdiction over any civil action commenced under section 516A of the Tariff Act of 1930. Pursuant to 28 U.S.C. § 2631(c) “[a] civil action contesting a determination listed in 516A of the Tariff act of 1930 may be commenced in the Court of International Trade by any interested party who was a party to the proceeding in connection with which the matter arose.” Defendant argues that Plaintiff is precluded from challenging the results of the antidumping determination because, although it qualified as an interested party, it did not participate in the administrative proceedings. The government’s position in this case is similar to the claim it made in Xerox Corp. v. United States, 118 F. Supp. 2d 1353, 1354 (CIT 2000) (“Xerox 7”). In Xerox I, the government claimed that the only method for parties to determine whether" } ]

[ { "docid": "10277783", "title": "", "text": "the District of Columbia, Guam and the Virgin Islands. . Section 31(5) may have been inspired by section 5(i) of the Bankruptcy Act of 1898, which provided: Where all the general partners are adjudged bankrupt, the partnership shall also be adjudged bankrupt. In the event of one or more but not all of the general partners of a partnership being adjudged bankrupt, the partnership property shall not be administered in bankruptcy, unless by consent of the general partner or partners not adjudged bankrupt; but such general partner or partners adjudged bankrupt shall settle the partnership business as expeditiously as its nature will permit and account for the interest of the general partners adjudged bankrupt. .In Preston v. United States (In re 4100 North High, Ltd.) 3 B.R. 232, 238 (Bankr.S.D.Ohio 1980), the court stated in dictum that a limited partnership’s filing of a liquidation case under the Bankruptcy Act dissolved the partnership. . Because of the construction given to section 31(5), the Court does not reach the issue of whether it is preempted by Chapter 11 of the Bankruptcy Code. The Court also does not reach the issue of whether the dissolution of a partnership by the filing of a bankruptcy case is invalidated by Bankruptcy Code § 365(e), which gives a debtor the power to affirm or reject an executory contract. . In Houchen v. Gadberry (In re Gadberry), 30 B.R. 13 (Bankr.C.D.Ill.1980), the court stated in dictum that the Chapter 7 case of a partner dissolves the partnership. . 11 U.S.C. § 723(c) provides: [T]he trustee has a claim against the estate of each general partner in such partnership that is a debtor in a case under this title for the full amount of all claims of creditors allowed in the case concerning such partnership. Notwithstanding section 502 of this title, there shall not be allowed in such partner’s case a claim against such partner on which both such partner and such partnership are liable, except to any extent that such claim is secured only by property of such partner and not by property of such partnership. The" } ]

[ { "docid": "18609250", "title": "", "text": "365(e)(1) or 541(c)(1)(B). Discussion At issue in this case is what Judge Case called “the complex and often tortuous interaction” between the Bankruptcy Code, state partnership law, and a partnership agreement entered into pursuant to that law. Cutler v. Cutler (In re Cutler), 165 B.R. 275, 276 (Bankr.D.Ariz.1994). For the reasons that will follow the Court grants judgment in favor of the defendants. The Partnership Agreement as an Executory Contract The threshold issue is whether the Second Amended Partnership Agreement, as amended, is an executory contract. Section 365 of the Bankruptcy Code provides that, with certain exceptions, the trustee, subject to court approval, may assume or reject an executory contract of the debtor. The Code furnishes no express definition of an executory contract. Professor Countryman, whose definition I adopted in In re Drake, 136 B.R. 325 (Bankr.D.Mass.1992), defined an executory contract as one under which the obligations of both parties are so far unperformed that the failure of either party to perform would constitute a material breach excusing the performance of the other. Countryman, Executory Contracts in Bankruptcy, 57 Minn.L.R. 439, 460 (1973). Under the partnership agreement all of the general partners have an obligation to continue to “do all things which may be reasonably necessary to manage the affairs and business of the partnership.” (Second Amended Partnership Agreement, § 6.4). Many material obligations among the partners still remain and therefore, I find that the Second Limited Partnership Agreement is an executory contract subject to § 365. This holding is in agreement with the majority of courts who have considered the issue. See Breeden v. Catron (In re Catron), 158 B.R. 629, 634 (E.D.Va.1993); In re Priestley, 93 B.R. 253, 258-59 (Bankr.D.N.M.1988); Burley v. American Gas & Oil Investors (In re Heafitz), 85 B.R. 274, 284 (Bankr.S.D.N.Y.1988); In re Corky Foods Corp., 85 B.R. 903, 904 (Bankr.S.D.Fla.1988); In re Sunset Developers, 69 B.R. 710, 712 (Bankr.D.Idaho 1987); Skeen v. Harms (In re Harms), 10 B.R. 817, 821 (Bankr.D.Colo.1981). The determination that this contract is executory does not decide, however, whether it has been terminated. A trustee or debtor in possession’s" }, { "docid": "14061122", "title": "", "text": "bankruptcy schedules. . Debtor cites this case as supporting his argument. While it does hold that post-petition earnings from personal services are not property of the estate it also holds that earnings attributable to executory contracts (e.g. fee agreements, employment contracts) are estate property. Fitzsimmons, 725 F.2d at 1211. . The trustee may be the more appropriate party because the partnership interests are estate property. . The Court is of the impression that this is the case, but does not so rule. The partnership and its partners are not parties before the Court. Compare In re Harms, 10 B.R. at 819 (trustee filed a complaint against seven limited partnerships seeking a determination that they were dissolved; \"all of the limited partners, with the exception of the debtor, join the trustee in his position.”). The Court disagrees with the movants that the partnership was dissolved by the filing of a chapter 11 petition. See In re Corky Foods Corp., 85 B.R. 903, 906 (Bankr.S.D.Fla.1988) (a partnership is an executory contract; 11 U.S.C. § 365(e)(1)(B) prohibits termination conditioned on the filing of bankruptcy); In re B C & K Cattle Company, 84 B.R. 69, 71 (Bankr.N.D. Tex. 1988) (Uniform Partnership Act does not call for dissolution when a partner files for reorganization); In re Safren, 65 B.R. 566, 569 (Bankr.C.D.Cal.1986); In re Rittenhouse Carpet, Inc., 56 B.R. 131, 132-33 (Bankr.E.D.Pa.1985). See also McBride, Bankruptcy and Partnership Dissolution: Making a federal case, 1988 Norton Bankruptcy Law Adviser 10 (October 1988) 6, 10. (“The more recent and better reasoned cases which have addressed the issue ... have correctly found that the partnership is not dissolved.\"); Raster and Cymbler, The Impact of a General Partner’s Bankruptcy upon the Remaining Partners, 21 Real Prop.Prob & Tr J. 539, 540 (1986) (Nothing in the Uniform Partnership Act compels dissolution if a partner files a Chapter 11 petition.). Through reasoning similar to that in Corky, the Court also sees no reason that conversion to chapter 7 or the filing of a chapter 7 would dissolve a partnership. The language of 11 U.S. C. § 365(e)(1)(B) speaks in terms" }, { "docid": "15282539", "title": "", "text": "be required, given the convoluted nature of the ownership of the Partnership interests, the friction among the Partners, the outstanding offer to purchase the Assemblage and the other attendant circumstances which would render such a dissolution equitable. See New York Partnership Law §§ 63(l)(f) and (2). Moreover, New York Partnership Law § 68 states: “Unless otherwise agreed the partners who have not wrongfully dissolved the partnership or the legal representative of the last surviving partner, not bankrupt, has the right to wind up the partnership affairs; provided however, that any partner, his legal representative, or his assign-ee, upon cause shown, may obtain winding up by the court.” (emphasis added). Given the fact that each of the original partners pledged, assigned or otherwise encumbered their interests and four of them have a trustee representing their interests, it does not appear that there is a “surviving” partner to wind up the Partnership affairs. While Donna might argue otherwise, the very fact that she assigned her economic interests to South East leads the court to conclude that she has lost her status as a surviving partner and is merely in the same position as any assignee who purchased the interest from South East. Further, in the nine years since her brothers were put into bankruptcy, Donna has done nothing to advance the dissolution of this Partnership. Rather, during the course of these cases she took advantage of the circumstances surrounding the marketing of the Assemblage by undercutting the Trustee and selling her interests to the very entity with whom the Trustee had been negotiating, consequently giving South East leverage to bid on the Assemblage at a substantially reduced price. When 100% of the interests in the Assemblage were marketed by Rockwood, approximately 70 parties expressed preliminary interest in purchasing them. However, after Donna’s Assignment upon marketing the Debtors’ 60% interests in the Assemblage, only two parties expressed interest, one of which was South East. The other, Manhattan West, ultimately withdrew its offer because of the concern that without the consent and participation of co-owners whose identities and rights were subject to on-going and" }, { "docid": "14061123", "title": "", "text": "conditioned on the filing of bankruptcy); In re B C & K Cattle Company, 84 B.R. 69, 71 (Bankr.N.D. Tex. 1988) (Uniform Partnership Act does not call for dissolution when a partner files for reorganization); In re Safren, 65 B.R. 566, 569 (Bankr.C.D.Cal.1986); In re Rittenhouse Carpet, Inc., 56 B.R. 131, 132-33 (Bankr.E.D.Pa.1985). See also McBride, Bankruptcy and Partnership Dissolution: Making a federal case, 1988 Norton Bankruptcy Law Adviser 10 (October 1988) 6, 10. (“The more recent and better reasoned cases which have addressed the issue ... have correctly found that the partnership is not dissolved.\"); Raster and Cymbler, The Impact of a General Partner’s Bankruptcy upon the Remaining Partners, 21 Real Prop.Prob & Tr J. 539, 540 (1986) (Nothing in the Uniform Partnership Act compels dissolution if a partner files a Chapter 11 petition.). Through reasoning similar to that in Corky, the Court also sees no reason that conversion to chapter 7 or the filing of a chapter 7 would dissolve a partnership. The language of 11 U.S. C. § 365(e)(1)(B) speaks in terms of the commencement of a \"case” under title 11, not a chapter 11 case under title 11. If the trustee had assumed and then assigned the executory partnership agreement to an universally accepted substitute general partner, within the 60 days allowed by section 365(d), and with a corresponding benefit to the estate, the Court sees no purpose served by finding the partnership dissolved. In this case, however, the contract was deemed rejected under section 365(d). This rejection is not related to the \"commencement” of a case under title 11, and section 365(e)(1)(B) should not apply. The rejection resulted in there being no general partner. If the issue were before the Court, it would find that the partnership was dissolved upon the rejection of the contract." }, { "docid": "6797574", "title": "", "text": "the partnership was a debtor in Clinton Court, there is no reason to believe that the applicability of § 365(e)(1) depended upon the partnership’s debtor status. Indeed, the facts underlying Clinton Court show otherwise. If § 365(e)(1) were to come into play only when the partnership is a debtor, then the individual partner’s bankruptcy filing, which occurred over two years prior to the partnership’s bankruptcy, would have caused the partnership to dissolve as a matter of law under § 8353(5). Because the court in Clinton Court held that the individual partner’s bankruptcy filing did not dissolve the partnership at a time when the partnership was not a debtor, it would be entirely inconsistent for the court to have regarded a partnership’s debtor status as a necessary condition for the applicability of § 365(e)(1). Thus, we reject the District Court’s conclusion that, as a result of the partnership’s non-debtor status, § 365(e)(1) is inapplicable to this case. We see no reason why the statute’s applicability should hinge upon whether the partnership itself has filed for bankruptcy. This is not to say, however, that we have now settled the question of whether § 365(e)(1) prevented the dissolution of the Legends Partnership. Courts have held that, under certain circumstances, other subsections of the Bankruptcy Code, namely §§ 365(e)(2)(A) and 365(c), preclude § 365(e)(1) from invalidating ipso facto provisions that would dissolve a partnership. See, e.g., Sunset Developers, 69 B.R. at 712-13 (holding that § 365(c) prevented § 365(e) from applying to partnership agreement); Finkelstein, 888 P.2d at 165 n. 3 (holding that “[s]ection 365(e)(2) clarifies Congress’ intention to prevent only private contracts from counteracting the Bankruptcy Code, not to prevent state law, such as partnership law, from determining the status of a partnership”); cf. In re Harms, 10 B.R. 817, 821-22 (Bankr.D.Colo.1981) (holding that limited partnership dissolved on day of general partner’s bankruptcy filing because, “[u]n-der Section 365(c) of the Bankruptcy Code, executory [limited] partnership agreements cannot be assumed by a debtor-in-possession without the consent of all the limited partners”). We now consider the impact of these subsections in this case. As we" }, { "docid": "6797581", "title": "", "text": "will remand the case for the District Court to determine whether Leah validly exercised her option to purchase Victor’s interest. . The District Court agreed with the Bankruptcy Court's holding that the Partnership Agreement constitutes an executory contract, which appears to be consistent with the majority rule. See, e.g., Summit Inv. & Dev. Corp. v. Leroux, 69 F.3d 608, 610 n. 3 (1st Cir.1995); In re Siegal, 190 B.R. 639, 643 (Bankr.D.Ariz.1996); Nizny, 175 B.R. at 936; Clinton Court, 160 B.R. at 60; Corky Foods Corp., 85 B.R. at 904. But cf. In re Smith, 185 B.R. 285, 293 (Bankr.S.D.Ill.1995) (finding that limited partnership agreement should not be considered executory contract if limited partner is purely passive investor not owing substantial future performance to limited partnership). In any case, the parties do not contest this issue on appeal. . We note that this position is in contrast with the recommendation of the National Bankruptcy Review Commission, an independent commission established through the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, 108 Stat. 4106 (1994). In its Final Report, filed in 1997, the Commission recommended that “[i]pso facto provisions relating to partnerships, LLCs, and the rights or interests of partners or LLC members should not be enforceable under the Bankruptcy Code.” National Bankruptcy Review Commission, Bankruptcy: The Next Twenty Years § 2.3.22, at 432 (1997). The Commission went on to explain: This position is consistent with the Bankruptcy Code treatment of ipso facto provisions in other types of property interests. [Footnote omitted.] Just because a partner or LLC member has sought relief under the Bankruptcy Code, there is no compelling interest served by mandating an automatic dissolution of the partnership or buyout of the debtor partner’s interest. Id. § 2.3.22, at 435. RENDELL, Circuit Judge, Concurring. I agree with Judge Fuentes that the events relied upon did not cause a dissolution of the partnership. I write separately merely to note that my agreement with the result we reach — by way of a complex path — is based not only on the statutes and case law, but also on the context" }, { "docid": "6797569", "title": "", "text": "Victor had ever actually been wrongfully excluded from the partnership. B. The Bankruptcy Filing The Estate next contends that, even if an exclusion of Leah or Victor did not cause the dissolution of the Legends Partnership, the partnership was dissolved when Victor filed a bankruptcy petition under Chapter 11 of the Bankruptcy Code. This argument raises the question of whether the bankruptcy of a general partner results in the dissolution of the partnership. At first glance, Pennsylvania law appears to provide a clear answer. Under § 8353, the bankruptcy of a partner, unlike the general expulsion of a partner, does in fact cause the automatic dissolution of the partnership. 15 Pa.C.S. § 8353(5). Our analysis would end neatly right here if our concerns extended only to the application of Pennsylvania law. We must also consider, however, the role of federal bankruptcy law and the impact of its interplay with state partnership law. As a survey of the case law reflects, in attempting to reconcile the Bankruptcy Code with state law on this issue of partnership dissolution, courts have been largely divided. Compare, e.g., In re Nizny, 175 B.R. 934, 939 (Bankr.S.D.Ohio 1994) (holding that filing of federal bankruptcy case by partner does not dissolve general partnership); In re Hawkins, 113 B.R. 315, 316-17 (Bankr.N.D.Tex.1990) (same); In re Todd, 118 B.R. 432, 435 (Bankr.D.S.C.1989) (same); In re Corky Foods Corp., 85 B.R. 903, 904 (Bankr.S.D.Fla.1988) (same); In re Safren, 65 B.R. 566, 569-70 (Bankr.C.D.Cal.1986) (same), with Phillips v. First City, Texas-Tyler, N.A. (In re Phillips), 966 F.2d 926, 929 (5th Cir.1992) (holding that partner’s federal bankruptcy filing causes dissolution of partnership); In re Burnett, 241 B.R. 438, 439 (Bankr.E.D.Ark.1999) (same); In re Sunset Developers, 69 B.R. 710, 712-13 (Bankr.D.Idaho 1987) (same); Finkelstein v. Security Properties, Inc., 76 Wash.App. 733, 888 P.2d 161, 164 (1995) (same). The contrary holdings of the Bankruptcy Court and the District Court in this case further reflect the confusion and controversy that has surrounded this issue. We review their findings as a starting point for our analysis. In holding that Victor’s bankruptcy filing did not cause the" }, { "docid": "14061103", "title": "", "text": "sale of anything until he is paid his attorney fees. Without deciding if this is a valid objection or if he has any standing to be heard on this issue the Court finds that it entered an order regarding his fees on September 6, 1988 and that his objection is now moot. The second objection is by Omega Funding Corporation and Stuart Laufe. They claim either a security interest in or ownership of all of the debtor’s interests in Sure-Fire Land Development, and argue that the Trustee has proposed no method to protect that interest. If this is true, the objection is well taken. However, this objection goes more to the terms of any eventual sale of the interest rather than to the authority of the trustee to sell the property, and can be better addressed at a hearing on sale. Therefore, the Court finds that the debtor’s limited partnership interests are property of the estate and the trustee has the power to sell them. General Partnership Interests A general partner has three types of property rights: rights in specific property, an interest in the partnership, and a right to participate in the management. § 54-1-24 NMSA 1978. There is nothing before the Court that would indicate the debtor had any rights in any specific property. The trustee’s motion seeks to sell only the debtor’s interests in the partnerships and to assign the debtor’s rights to manage those interests. A partner’s interest in a partnership is his share of the profits and surplus, and is personal property. § 54-1-26 NMSA 1978. It is estate property and the trustee may sell it. See also § 54-1-27 NMSA 1978. (Conveyance of a partnership interest entitles the assignee to receive in accordance with his contract the profits and upon dissolution the interest to which the assigning partner would otherwise be entitled.) Accord In re Walsh, 14 B.R. 385, 388 (Bankr. D.D.C.1981). The debtor’s rights to manage the partnership, however, are contract rights, see e.g., In re Corky Foods, Corp., 85 B.R. 903, 906 (Bankr.S.D.Fla. 1988), and will be addressed below with the other" }, { "docid": "6797573", "title": "", "text": "thus, that Victor’s bankruptcy filing resulted in the dissolution of the partnership under § 8353(5). In considering the applicability of § 365(e)(1), we find that the District Court’s reliance on Crutcher is misplaced. As the District Court explained, Crutcher does appear to suggest that “§ 365(e)(1) does not come into play” when “the partnership is not a debtor.” 209 B.R. at 352 n. 2. However, we see no support outside of Crutcher for that proposition. In fact, such a holding appears contrary to Clinton Court, the case to which Crutcher cites on this point. In Clinton Court, more than two years after one of two partners of a general partnership filed for bankruptcy, the partnership itself filed for bankruptcy. 160 B.R. at 58. Citing to § 8353(5), a secured creditor of the partnership claimed that the partnership had been dissolved upon the individual partner’s bankruptcy filing. Id. Clinton Court rejected that argument, finding that § 365(e)(1) prevented the partner’s bankruptcy from causing the dissolution of the partnership. Id. at 60. While it is true that the partnership was a debtor in Clinton Court, there is no reason to believe that the applicability of § 365(e)(1) depended upon the partnership’s debtor status. Indeed, the facts underlying Clinton Court show otherwise. If § 365(e)(1) were to come into play only when the partnership is a debtor, then the individual partner’s bankruptcy filing, which occurred over two years prior to the partnership’s bankruptcy, would have caused the partnership to dissolve as a matter of law under § 8353(5). Because the court in Clinton Court held that the individual partner’s bankruptcy filing did not dissolve the partnership at a time when the partnership was not a debtor, it would be entirely inconsistent for the court to have regarded a partnership’s debtor status as a necessary condition for the applicability of § 365(e)(1). Thus, we reject the District Court’s conclusion that, as a result of the partnership’s non-debtor status, § 365(e)(1) is inapplicable to this case. We see no reason why the statute’s applicability should hinge upon whether the partnership itself has filed for bankruptcy." }, { "docid": "6797570", "title": "", "text": "dissolution, courts have been largely divided. Compare, e.g., In re Nizny, 175 B.R. 934, 939 (Bankr.S.D.Ohio 1994) (holding that filing of federal bankruptcy case by partner does not dissolve general partnership); In re Hawkins, 113 B.R. 315, 316-17 (Bankr.N.D.Tex.1990) (same); In re Todd, 118 B.R. 432, 435 (Bankr.D.S.C.1989) (same); In re Corky Foods Corp., 85 B.R. 903, 904 (Bankr.S.D.Fla.1988) (same); In re Safren, 65 B.R. 566, 569-70 (Bankr.C.D.Cal.1986) (same), with Phillips v. First City, Texas-Tyler, N.A. (In re Phillips), 966 F.2d 926, 929 (5th Cir.1992) (holding that partner’s federal bankruptcy filing causes dissolution of partnership); In re Burnett, 241 B.R. 438, 439 (Bankr.E.D.Ark.1999) (same); In re Sunset Developers, 69 B.R. 710, 712-13 (Bankr.D.Idaho 1987) (same); Finkelstein v. Security Properties, Inc., 76 Wash.App. 733, 888 P.2d 161, 164 (1995) (same). The contrary holdings of the Bankruptcy Court and the District Court in this case further reflect the confusion and controversy that has surrounded this issue. We review their findings as a starting point for our analysis. In holding that Victor’s bankruptcy filing did not cause the dissolution of the Legends Partnership, the Bankruptcy Court reasoned that the Partnership Agreement constitutes an executory contract and, as such, cannot be dissolved pursuant to 11 U.S.C. § 365(e)(1). That section of the Bankruptcy Code states: Notwithstanding a provision in an execu-tory contract ... or in applicable law, an executory contract ... of the debtor may not be terminated or modified ... at any time after the commencement of the case solely because of a provision in such contract ... that is conditioned on ... the commencement of a case under this title. 11 U.S.C. § 365(e)(1)(B). In other words, § 365(e)(1) invalidates ipso facto provi sions, which, in this context, are provisions of law or contract which specify that “a bankruptcy filing per se will terminate or modify” an executory contract. In re Clinton Court, 160 B.R. 57, 59 (Bankr. E.D.Pa.1993). Because § 8353(5) of Pennsylvania’s UPA provides for the dissolution (or “modification”) of a partnership agreement upon the bankruptcy of a partner, the Bankruptcy Court concluded that § 8353(5) is an ipso facto" }, { "docid": "18609251", "title": "", "text": "Contracts in Bankruptcy, 57 Minn.L.R. 439, 460 (1973). Under the partnership agreement all of the general partners have an obligation to continue to “do all things which may be reasonably necessary to manage the affairs and business of the partnership.” (Second Amended Partnership Agreement, § 6.4). Many material obligations among the partners still remain and therefore, I find that the Second Limited Partnership Agreement is an executory contract subject to § 365. This holding is in agreement with the majority of courts who have considered the issue. See Breeden v. Catron (In re Catron), 158 B.R. 629, 634 (E.D.Va.1993); In re Priestley, 93 B.R. 253, 258-59 (Bankr.D.N.M.1988); Burley v. American Gas & Oil Investors (In re Heafitz), 85 B.R. 274, 284 (Bankr.S.D.N.Y.1988); In re Corky Foods Corp., 85 B.R. 903, 904 (Bankr.S.D.Fla.1988); In re Sunset Developers, 69 B.R. 710, 712 (Bankr.D.Idaho 1987); Skeen v. Harms (In re Harms), 10 B.R. 817, 821 (Bankr.D.Colo.1981). The determination that this contract is executory does not decide, however, whether it has been terminated. A trustee or debtor in possession’s power to assume or reject an executory contract is limited by § 365(c). The next issue is whether § 365(c) would permit Curran and LeRoux, as debtors in possession, to assume the rights and duties of the partnership agreement. Section 365(c)(1) states: (c) The trustee may not assume or assign an executory contract ... of the debtor, whether or not such contract ... prohibits or restricts assignment of rights or delegation of duties, if— (1)(A) applicable law excuses a party, other than the debtor, to the contract ... from accepting performance from or rendering performance to an entity other than the debtor or the debtor in possession whether or not such contract ... prohibits or restricts assignment of rights or delegation of duties; and (B) such party does not consent to such assumption or assignment ... 11 U.S.C. § 365(c)(1) (emphasis added). The present language of § 365(c) was added to the Code by the Bankruptcy Amendments and Federal Judgeship Act of 1984 (“BAFJA”), Pub.L. No. 98-353, 98 Stat. 333 (1984). Section 362(a) of BAFJA" }, { "docid": "2406551", "title": "", "text": ". If the bankruptcy court appoints a trustee instead of leaving the debtor-partner in control of her bankruptcy estate, the trustee assumes all of the debtor's partnership interests. 11 U.S.C. §§ 323 (trustee “is the representative of the estate”), 541(a)(1) (voluntary petition creates an estate that contains “all legal or equitable interests of the debtor in property” except power that the debtor may only exercise for the benefit of a separate entity). Thus, federal law precludes a bankrupt partner from relying on her status as a partner to act on behalf of a partnership after the court has' appointed a trustee to administer her estate. . Federal conflation of the terms \"debtor\" and “bankrupt\" only means that there is no longer any difference between these two terms. The opposite conclusion — that, for purposes of state laws that retain the term 'bankrupt,” there is no such thing as “bankrupt” under federal law— would considerably change the significance of bankruptcy in states’ partnership laws. We cannot countenance such a drastic change without some indication of legislative intent or reason for doing so. . See also In re Corky Foods Corp., 85 B.R. 903, 904 (Bankr.S.D.Fla.1988) (completely misreading Safren to hold that, while state law includes Chapter 11 petitioners as “bankrupts,” some state partnership laws that apply to bankrupts conflict with federal bankruptcy law); cf. Safren, 65 B.R. at 570 n. 5 (decision rests wholly on interpretation of state law without reaching conflict issue). . Section 35 is entitled “Power of Partner to Bind Partnership to Third Persons after Dissolution.\" Tex.Rév.Civ.Stat. art. 6132b § 35; see also id. Source and Comments — Alan R. Bromberg. . See Black’s Law Dictionary 153 (5th ed. 1979) (to “bind” is “to obligate [or] place under definite duties or legal obligations”). . The parties raise, and we recognize, no issue concerning either express or implied preemption. See id. . See Advisory Committee Note to Fed.Bankr.R. 1004 in 11 U.S.C.A. (West 1984) (rule 1004(a) \"complements\" § 301). . By addressing HSP’s argument that is based on Rittenhouse, we do not imply that we agree with that case's" }, { "docid": "85270", "title": "", "text": "insiders might receive favorable terms at the expense of impaired creditors. Because of the lack of market valuation or competitive bidding, such insider transactions require greater scrutiny by the bankruptcy court to ensure fairness. In Bjolmes,.in order to measure the proposed contribution against actual market value, the bankruptcy court (Queenan, J.) required that an auction be held among the shareholders and creditors who were interested in purchasing the new shares (100% equity interest in the debtor) as a condition to plan confirmation. 134 B.R. at 1010. While an auction of the equity interest in WELP would have been preferable here, that issue was not pressed below. The bottom line is that neither the credit bid provision nor the new value corollary as described by LaSalle applies here. The Bankruptcy Code does not prohibit such sales, and instead relies on the confirmation requirements as the safety net. See 11 U.S.C. § 1129(b)(1) (requiring the plan treat non-accepting impaired claims fairly and equitably). Beal makes a last-ditch argument that the withdrawal of WELP’s general partners dissolves the partnership, requiring its assets to be sold in order to wind up the partnership. However, WELP correctly counters that the partnership survives this reorganization because its equity changes hands simultaneously on the plan’s effective date. Therefore, the partnership is never left without a general partner. See Mass.Gen.L. ch. 109, § 44(4); In re Sovereign Group, 88 B.R. 325, 831 (Bankr.D.Colo.1988) (applying an analogous Colorado partnership statute in similar circumstances). 3. Beal’s Secured Claim The Bankruptcy Code requires that the plan be fair and equitable with respect to nonaccepting classes of secured claims. With respect to Beal’s Class Two secured claim, the fair and equitable requirement is satisfied if the plan provides: (i) that the holders of such claims retain the liens securing such claims, whether the property subject to such liens is retained by the debtor or transferred to another entity, to the extent of the allowed amount of such claims; and (ii) that each holder of a claim of such class receives on account of such claim deferred cash payments totaling at least the" }, { "docid": "1263760", "title": "", "text": "The Safren court had to decide whether the filing of bankruptcy by either the general partners or by the partnership itself caused the dissolution of the partnership. Based on statutory construction and public policy grounds, the court held that a partnership did not dissolve due to the bankruptcy of either the general partners or the partnership itself. Id. at 569-70. In 1914 the Uniform Partnership Act (UPA) was promulgated by the National Conference of Commissioners on Uniform State Laws. At that time the only kind of bankruptcy available was a liquidation similar to that available under Chapter 7 of the present Bankruptcy Code. Almost two decades later, Congress authorized corporate reorganization. See Pub.L. No. 72-424, § 207, 48 Stat. 912 (1934). Therefore, the Commissioners did not contemplate that the UPA would apply to any kind of bankruptcy other than liquidation, simply because no other kind of bankruptcy existed. Safren, supra, at 569. The Texas statute governing general partnerships is the Uniform Partnership Act, with certain modifications. Section 31(5) of the Texas Uniform Partnership Act provides: “Dissolution is caused: ... (5) By the bankruptcy of any partner or the partnership_” Tex.Rev.Civ.Stat. Ann. art. 6132b, § 31(5) (Vernon 1970). From the facts elicited at hearing, it is clear that Rochester’s allegations that Hawkins withdrew from RHR and/or that Hawkins failed to devote time to managing RHR stem from the fact that Hawkins is in bankruptcy. Rochester presented no evidence indicating that either claim was true prior to the filing of bankruptcy by Hawkins. Also, Rochester relies on Hawkins’ Second Amended Plan of Reorganization as source of proof for his allegations. As to whether Hawkins’ bankruptcy dissolved RHR, this court holds that the personal bankruptcy of a general partner does not cause the dissolution of the partnership. Accord Safren, supra; In re Corky Foods Corp., 85 B.R. 903 (Bankr.S.D.Fla.1988); In re BC & K Cattle Co., 84 B.R. 69 (Bankr.N.D.Tex.1988); In re Rittenhouse Carpet, Inc., 56 B.R. 131, 133 (Bankr.E.D.Pa.1985). Contra In re Sunset Developers, 69 B.R. 710 (Bankr.D.Idaho 1987); In re Minton Group, Inc., 27 B.R. 385 (Bankr.S.D.N.Y.1983), aff'd, 46 B.R. 222" }, { "docid": "6797571", "title": "", "text": "dissolution of the Legends Partnership, the Bankruptcy Court reasoned that the Partnership Agreement constitutes an executory contract and, as such, cannot be dissolved pursuant to 11 U.S.C. § 365(e)(1). That section of the Bankruptcy Code states: Notwithstanding a provision in an execu-tory contract ... or in applicable law, an executory contract ... of the debtor may not be terminated or modified ... at any time after the commencement of the case solely because of a provision in such contract ... that is conditioned on ... the commencement of a case under this title. 11 U.S.C. § 365(e)(1)(B). In other words, § 365(e)(1) invalidates ipso facto provi sions, which, in this context, are provisions of law or contract which specify that “a bankruptcy filing per se will terminate or modify” an executory contract. In re Clinton Court, 160 B.R. 57, 59 (Bankr. E.D.Pa.1993). Because § 8353(5) of Pennsylvania’s UPA provides for the dissolution (or “modification”) of a partnership agreement upon the bankruptcy of a partner, the Bankruptcy Court concluded that § 8353(5) is an ipso facto provision and that § 365(e)(1) prevented it from causing the dissolution of the Legends Partnership. In stark disagreement with the Bankruptcy Court, the District Court held that Victor’s bankruptcy did, in fact, constitute an event sufficient to cause the dissolution of the partnership. In doing so, the court relied heavily on the following language in a footnote in Crutcher. While this court held, in In re Clinton Court, 160 B.R. 57, 58-60 (Bankr. E.D.Pa.1993), that a bankruptcy filing by a partner should not preclude a partnership from filing a bankruptcy case, on the grounds that this result would violate 11 U.S.C. § 365(e)(1), the partnership is not a debtor here. Thus, § 365(e)(1) does not come into play. It therefore appears that ... the partnership would necessarily have to be held to have been dissolved as of [the date the partner filed individually for bankruptcy]. Crutcher, 209 B.R. at 352 n. 2. Noting that the partnership is not a debtor in this case, the District Court similarly concluded that § 365(e)(1) does not apply and," }, { "docid": "14061121", "title": "", "text": "forth in the memorandum opinion entered in connection herewith, IT IS ORDERED that trustee’s motions to approve offers are denied without prejudice. IT IS ORDERED that counsel for the limited partners in Happy Hollow Ltd. shall prepare a form of order modifying the automatic stay in conformity with the memo randum opinion for presentation to the Court. . That interest is purported to be 1 general partnership unit and 1.5 units of limited partnership interests out of 15 units overall. . This motion was mooted by the fifth motion. See infra. .At the June 2, 1988 hearing on this matter the attorney for Mr. Coler specifically stated his intent was to withdraw the earlier offer. . While a limited partnership interest is freely assignable, § 54-2-19(A) N.M.S.A. 1978, the Court cannot rule that the purchaser will automatically become a substituted limited partner. See generally § 54-2-19 N.M.S.A. 1978. . The DeColores limited partner subsequently withdrew her objection. . This amount is based on his fractional interests and estimated values as reported on the debtor’s amended bankruptcy schedules. . Debtor cites this case as supporting his argument. While it does hold that post-petition earnings from personal services are not property of the estate it also holds that earnings attributable to executory contracts (e.g. fee agreements, employment contracts) are estate property. Fitzsimmons, 725 F.2d at 1211. . The trustee may be the more appropriate party because the partnership interests are estate property. . The Court is of the impression that this is the case, but does not so rule. The partnership and its partners are not parties before the Court. Compare In re Harms, 10 B.R. at 819 (trustee filed a complaint against seven limited partnerships seeking a determination that they were dissolved; \"all of the limited partners, with the exception of the debtor, join the trustee in his position.”). The Court disagrees with the movants that the partnership was dissolved by the filing of a chapter 11 petition. See In re Corky Foods Corp., 85 B.R. 903, 906 (Bankr.S.D.Fla.1988) (a partnership is an executory contract; 11 U.S.C. § 365(e)(1)(B) prohibits termination" }, { "docid": "6797579", "title": "", "text": "the partnership with the debtor because, “upon securing bankruptcy-court protection, a general partner who becomes a debtor-in-possession of her personal estate necessarily assumes responsibilities to her creditors that conflict with her responsibilities to her co-partners.” Phillips, 966 F.2d at 929 (citing Harms, 10 B.R. at 822). Subsections 365(c) and 365(e)(2) will prevent a debtor in bankruptcy from continuing to serve as a partner, however, only when a non-debtor partner does not consent to continue in the partnership with the debtor. In this case, there is no evidence whatsoever that Leah objected to having Victor remain as her general partner after he had filed his bankruptcy petition. In fact, the record demonstrates that Leah, with full knowledge that Victor had filed for bankruptcy, continued to regard Victor as her general partner. The partnership tax returns for 1997 and 1998, both of which were signed and filed by Leah, continued to list Victor as a general partner despite his debtor status. Although she had ample opportunity, Leah took no steps indicating that she did not consent to Victor’s continuing status as a general partner after he filed his bankruptcy petition. In light of these facts, we find that Leah effectively consented to remain partners with Victor despite his debtor status and, thus, that § 365(c)(1) and § 365(e)(2)(A) do not apply. That being the case, we conclude that § 365(e)(1) is fully applicable here and, therefore, Victor’s bankruptcy filing did not result in the dissolution of the Legends Partnership. IV. Because we find that the acts of exclusion and the bankruptcy filing discussed above did not result in the dissolution of the Legends Partnership, we conclude, pursuant to 15 Pa.C.S. § 8353(4), that the event which actually caused the dissolution of the partnership was Victor’s death on January 12,1999. Having improperly con- eluded that the partnership was dissolved prior to Victor’s death, the District Court did not reach the question of whether Leah properly exercised her option to purchase Victor’s partnership interest in accordance with Paragraphs 18 and 19 of the Partnership Agreement. Thus, we will vacate the District Court’s order and" }, { "docid": "6797580", "title": "", "text": "Victor’s continuing status as a general partner after he filed his bankruptcy petition. In light of these facts, we find that Leah effectively consented to remain partners with Victor despite his debtor status and, thus, that § 365(c)(1) and § 365(e)(2)(A) do not apply. That being the case, we conclude that § 365(e)(1) is fully applicable here and, therefore, Victor’s bankruptcy filing did not result in the dissolution of the Legends Partnership. IV. Because we find that the acts of exclusion and the bankruptcy filing discussed above did not result in the dissolution of the Legends Partnership, we conclude, pursuant to 15 Pa.C.S. § 8353(4), that the event which actually caused the dissolution of the partnership was Victor’s death on January 12,1999. Having improperly con- eluded that the partnership was dissolved prior to Victor’s death, the District Court did not reach the question of whether Leah properly exercised her option to purchase Victor’s partnership interest in accordance with Paragraphs 18 and 19 of the Partnership Agreement. Thus, we will vacate the District Court’s order and will remand the case for the District Court to determine whether Leah validly exercised her option to purchase Victor’s interest. . The District Court agreed with the Bankruptcy Court's holding that the Partnership Agreement constitutes an executory contract, which appears to be consistent with the majority rule. See, e.g., Summit Inv. & Dev. Corp. v. Leroux, 69 F.3d 608, 610 n. 3 (1st Cir.1995); In re Siegal, 190 B.R. 639, 643 (Bankr.D.Ariz.1996); Nizny, 175 B.R. at 936; Clinton Court, 160 B.R. at 60; Corky Foods Corp., 85 B.R. at 904. But cf. In re Smith, 185 B.R. 285, 293 (Bankr.S.D.Ill.1995) (finding that limited partnership agreement should not be considered executory contract if limited partner is purely passive investor not owing substantial future performance to limited partnership). In any case, the parties do not contest this issue on appeal. . We note that this position is in contrast with the recommendation of the National Bankruptcy Review Commission, an independent commission established through the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, 108 Stat. 4106 (1994). In" }, { "docid": "2406552", "title": "", "text": "intent or reason for doing so. . See also In re Corky Foods Corp., 85 B.R. 903, 904 (Bankr.S.D.Fla.1988) (completely misreading Safren to hold that, while state law includes Chapter 11 petitioners as “bankrupts,” some state partnership laws that apply to bankrupts conflict with federal bankruptcy law); cf. Safren, 65 B.R. at 570 n. 5 (decision rests wholly on interpretation of state law without reaching conflict issue). . Section 35 is entitled “Power of Partner to Bind Partnership to Third Persons after Dissolution.\" Tex.Rév.Civ.Stat. art. 6132b § 35; see also id. Source and Comments — Alan R. Bromberg. . See Black’s Law Dictionary 153 (5th ed. 1979) (to “bind” is “to obligate [or] place under definite duties or legal obligations”). . The parties raise, and we recognize, no issue concerning either express or implied preemption. See id. . See Advisory Committee Note to Fed.Bankr.R. 1004 in 11 U.S.C.A. (West 1984) (rule 1004(a) \"complements\" § 301). . By addressing HSP’s argument that is based on Rittenhouse, we do not imply that we agree with that case's outcome or rationale. In Rit-tenhouse and at least two other cases, courts have applied section 365(e)(1) to permit the sole general partner of a limited partnership to retain her general partner status despite statements in the partnership agreement and state law that deprived her of general partner status when she filed a Chapter 11 petition on her own behalf. Rittenhouse, 56 B.R. at 132-33; In re. Fidelity Am. Mortg. Co., 10 B.R. 781 (Bankr.E.D.Pa.1981); Corky Foods, 85 B.R. at 904. But none of these courts considered the significance of section 365(e)(2), or the then virtually identical 11 U.S.C. § 365(c), which several courts have relied upon to reach the exact opposite conclusion than that reached by the courts in Rittenhouse et al. See Sunset Developers, 69 B.R. at 712-13; Harms, 10 B.R. at 821-22; see also Minton, 27 B.R. at 390-91 (following Harms)-, cf. In re Fryar, 99 B.R. 747, 750 (Bankr.W.D.Tex. 1989) (Congress precluded Harms’ reading of section 365(c)(1) without changing the parallel personal-service provision of section 365(e)(2))." }, { "docid": "14061104", "title": "", "text": "property rights: rights in specific property, an interest in the partnership, and a right to participate in the management. § 54-1-24 NMSA 1978. There is nothing before the Court that would indicate the debtor had any rights in any specific property. The trustee’s motion seeks to sell only the debtor’s interests in the partnerships and to assign the debtor’s rights to manage those interests. A partner’s interest in a partnership is his share of the profits and surplus, and is personal property. § 54-1-26 NMSA 1978. It is estate property and the trustee may sell it. See also § 54-1-27 NMSA 1978. (Conveyance of a partnership interest entitles the assignee to receive in accordance with his contract the profits and upon dissolution the interest to which the assigning partner would otherwise be entitled.) Accord In re Walsh, 14 B.R. 385, 388 (Bankr. D.D.C.1981). The debtor’s rights to manage the partnership, however, are contract rights, see e.g., In re Corky Foods, Corp., 85 B.R. 903, 906 (Bankr.S.D.Fla. 1988), and will be addressed below with the other contract rights that the trustee seeks to assign. The trustee may sell the debt- or’s general partnership interests to the extent that the sale is an assignment of profits and interests. § 54-1-27 NMSA 1978. Contract Rights Each partnership agreement grants the debtor the exclusive right to deal with the real property of the partnerships and the exclusive right to receive commissions therefrom. As the sole general partner, the debtor was also granted the rights to manage the partnerships. This discussion will apply to all those contractual rights. Six limited partners in Happy Hollow and one in DeColores joined to object on the grounds that the partnerships were dissolved as a matter of law and argued, in essence, that the partnerships must now wind up. Even if this were true the Court does not find this a valid objection to a sale of the interests. The Court finds no authority that prohibits the transfer or sale of an interest in a dissolved partnership. The same parties also argued that the debtor was seriously in default" } ]

[ { "docid": "22742617", "title": "", "text": "unconstitutional condition of continued public employment for clerks, deputies, and janitors, it is an acceptable requirement for an assistant public defender. I In Elrod v. Burns the Court held that the newly elected Democratic Sheriff of Cook County, Ill., had violated the constitutional rights of certain non-civil-service employees by discharging them “because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders.” 427 U. S., at 351. That holding was supported by two separate opinions. Writing for the plurality, Mr. Justice Brennan identified two separate but interrelated reasons supporting the conclusion that the discharges were prohibited by the First and Fourteenth Amendments. First, he analyzed the impact of a political patronage system on freedom of belief and association. Noting that in order to retain their jobs, the Sheriff’s employees were required to pledge their allegiance to the Democratic Party, work for or contribute to the party’s candidates, or obtain a Democratic sponsor, he concluded that the inevitable tendency of such a system was to coerce employees into compromising their true beliefs. That conclusion, in his opinion, brought the practice within the rule of cases like Board of Education v. Barnette, 319 U. S. 624, condemning the use of governmental power to prescribe what the citizenry-must accept as orthodox opinion. Second, apart from the potential impact of patronage dismissals on the formation and expression of opinion, Me. Justice Brennan- also stated that the practice had the effect of imposing an unconstitutional condition on the receipt of a public benefit and therefore came within the rule of cases like Perry v. Sindermann, 408 U. S. 593. In support of the holding in Perry that even an employee with no contractual right to retain his job cannot be dismissed for engaging in constitutionally protected speech, the Court had stated: “For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are" } ]

[ { "docid": "1704117", "title": "", "text": "JON O. NEWMAN, Circuit Judge: This appeal presents several issues concerning a pubhc employer’s right to take adverse action against an employee for exercising his First Amendment speech and his First Amendment assoeiational rights. The issues arise at the intersection of the doctrines set forth in two Supreme Court decisions, Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In brief, Pickering accorded public employees some protection from adverse action taken because of their speech, while Elrod gave them some protection if they were discharged because of their political affiliation, unless they occupied “policymaking” positions. This appeal raises questions regarding (1) the nature of the distinction between the Pickering and the Elrod lines of Supreme Court decisions, (2) the proper method of analysis to be used when a public employer’s adverse actions against an employee are motivated both by speech protected by Pickering and by political considerations that left the employee vulnerable under Elrod, and (3) the effect of an employee’s policymaking status in the Pickering balancing test. These issues arise on an appeal by defendants John Spencer and Donald Christopher from the September 12, 1996, order of the District Court for the Southern District of New York (Jed S. Rakoff, Judge), denying the defendants’ motion to dismiss the complaint of plaintiff Albert MeEvoy on the ground of, among other things, qualified immunity. We conclude (1) that employment action taken because of both speech protected under Pickering and political association unprotected under Elrod creates no liability and (2) that where employment action is taken solely because of speech, the employee’s policymaking role weighs in favor of the employer in the Pickering balance, but does not provide automatic insulation from liability. Since the first ruling precludes all liability for plaintiffs first demotion, we dismiss the claim concerning that action, at least insofar as it concerns appellants Spencer and Christopher. Since the second ruling settles a point of law that was unsettled at the time of plaintiffs second demotion, we uphold defendants’" }, { "docid": "3198358", "title": "", "text": "is whether Remexcel and Kortright were entitled to First Amendment protection against retaliation for their affiliation with the former Mayor and the NPP. It might be tempting to view this case as just a breach of contract claim with no constitutional dimension. As discussed below, Remexcel’s and Kortright’s Fourteenth Amendment procedural due process claim fails because state contract remedies provide the requisite due process. Remexcel’s and Kortright’s First Amendment claim, on the other hand, is premised on a constitutionally proscribed reason for the alleged breach of contract-namely, the po litical affiliation of individuals claiming a right to payment for work already performed. Although we must always be concerned about constitutionalizing traditional common law claims, we see no theoretical bar to the First Amendment claim that is alleged here. In a line of cases brought by government employees who were fired or penalized because of their political association, the Supreme Court held that there is no right to protection for political affiliation where political affiliation is legitimately relevant to the employee’s job. See Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 367-68, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality). “[I]f an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.” Branti, 445 U.S. at 517, 100 S.Ct. 1287. In Elrod, Justice Stewart’s concurring opinion identified the kind of jobs that were protected from political discrimination as “nonpolicymaking, nonconfidential” government jobs. 427 U.S. at 375, 96 S.Ct. 2673. Branti clarified that the policymaking or confidential criteria are merely signposts for the real question of whether the government has a legitimate interest in using political persuasion in hiring and firing: [T]he ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. 445 U.S. at 518,100 S.Ct. 1287." }, { "docid": "5820597", "title": "", "text": "employment. 3. What process was Plaintiff entitled to before he could be terminated? Plaintiff was not given a hearing prior to his dismissal as required by Ordinance 19-1984. Therefore, he was denied his due process rights under the fourteenth amendment. As set forth above, Ordinance 19-1984 provides that a tenured Municipal Superintendent of Public Works “shall not be removed from said office for political or other reasons except for good cause shown and upon hearing.” Even if the Township of Washington could prove that good cause existed for Plaintiffs termination, it still failed to afford him a hearing. The Defendants therefore have failed to provide Plaintiff with the procedural due process to which he was entitled. As a result, Plaintiffs motion for summary judgment with respect to his due process claim will be granted. B. Political Discrimination In 1976, the Supreme Court held that the dismissal of certain public employees solely based on partisan political affiliation infringes upon first amendment rights of belief and association. Elrod v. Burns, 427 U.S. 347, 349, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Employees determined to hold jobs that do not have policy-making or confidential functions cannot be discharged on the sole ground of political beliefs. Id. at 375, 96 S.Ct. 2673 (Stewart, J., concurring). An exception can be made “if an employee’s private political beliefs would interfere with the discharge of his public duties.” Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The Supreme Court explained that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. at 518, 100 S.Ct. 1287. In such a case, the first amendment would not be offended if the defendant can demonstrate “an overriding interest” that party affiliation is an appropriate requirement of the office and such a difference would be highly likely to render an official ineffective in carrying out his or her duties and responsibilities. Elrod, 427" }, { "docid": "2581078", "title": "", "text": "from wards. The defendant James Pekarski is its president. During 1978 and 1979, Pekarski led a majority faction of the Board consisting of himself and defendants Anthony Gesualdi, Jennie Cat-tani, Jerry Catania, Marie Mascia, and Anthony Melio. Four of the defendants— Chaser Cotugno, William Sommerer, Robert Lewis, and Albert Wurm, representing wards 1, 2, 4, and 7, respectively — comprised a minority faction of the Board. Until July 25, 1979, Abraham, a civil engineer, served as Director of Roads and Public Property. His amended complaint charges that the faction led by Pekarski directed him to withhold municipal services from Township wards represented by members of the minority faction. It charges further that when he refused to cooperate by withholding road work in those wards, he was discharged without a hearing. Abraham advanced two legal theories in the trial court. He contended, first, that his discharge was in retaliation for his refusal to join a majority political faction in the municipality, and thus was in violation of the federal substantive liberty interest recognized in Elrod v. Burns, 427 U.S. 347, 355-73, 96 S.Ct. 2673, 2680-89, 49 L.Ed.2d 547 (1976) (Brennan, J.), id. at 374-75, 96 S.Ct. at 2690-91 (Stewart, J.), and Branti v. Finkel, 445 U.S. 507, 513-20, 100 S.Ct. 1287, 1292-95, 63 L.Ed.2d 574 (1980). He also contended that he had a state law property interest in continuing employment, which was terminated without due process of law. The defendants, without filing any affidavits, moved for summary judgment on both theories. The trial court granted their motion with respect to the Elrod-Branti ground, but held that Abraham did have a Pennsylvania law property interest in employment. Abraham v. Pekarski, 537 F.Supp. 858, 866-71 (E.D.Pa.1982). Thus, the district court denied defendants’ motion for summary judgment on Abraham’s due process claim, and the case proceeded to trial on that theory. II. The defendants urge somewhat half-heartedly that no evidence adduced at trial supported Abraham’s due process claim. That contention is frivolous. It was conceded in the trial court that Abraham was discharged without any hearing whatsoever. If Abraham had a property interest in" }, { "docid": "22187280", "title": "", "text": "OPINION OF THE COURT HAROLD A. ACKERMAN, Senior District Judge: This appeal arises out the employment termination of appellant Patrick J. Boyle (“Boyle”) by the County of Allegheny, Pennsylvania from his position as Deputy Director of Marketing and Communications in the county’s Department of Aviation. Boyle, a Democrat, alleged in his complaint that he was terminated based on his political affiliation in violation of the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Boyle sought reinstatement to the position of Deputy Director, various other equitable relief and compensatory and punitive damages for pain, suffering, emotional distress and humiliation resulting from his allegedly unlawful termination. WTiile denying that he was terminated for his political affiliation, defendants/appellees moved for summary judgment in the district court contending that even if he were, such a termination was proper under Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and their progeny. Boyle opposed the motion, relying in large measure on the deposition testimonies of two of the three members of the Board of Commissioners of Allegheny County. These Commissioners testified that political affiliation was not an appropriate requirement for the position of Deputy Director of Marketing and Communications. The district court granted defendants’ motion for summary judgment, concluding that the deposition testimonies of the two Commissioners were not significantly probative on the question of whether political 'affiliation was an appropriate requirement for the position held by Boyle under Supreme Court and Third Circuit case law. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We reverse. I. Factual Background The Board of Commissioners of Allegheny County has traditionally been a stronghold for the Democratic Party. For nearly fifty years, until 1995, the three-member Board was comprised of a Democratic majority; In 1995, however, two Republican Commissioners, Larry Dunn and Bob Cranmer, were elected, and the Board became a Republican majority. Boyle was hired by Allegheny County as Deputy Director in its Department of Aviation on January 21, 1986. By letter," }, { "docid": "765696", "title": "", "text": "evidence shows that the only reason for which Branti sought to terminate plaintiffs as Assistants was that they were not recommended or sponsored pursuant to the procedures that had been decided upon by the Democratic caucus. IV. Plaintiffs argue that defendant’s attempt to exclude them from their government jobs, which jobs they had been performing satisfactorily, upon the sole ground of their political beliefs constituted a violation of the First and Fourteenth Amendments. The leading case on the issue presented is Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In Mr. Justice Brennan’s plurality opinion in Elrod, which opinion was joined in by Justices White and Marshall, the question presented was stated to be “whether public employees who allege that they were discharged or threatened with discharge solely because of their partisan political affiliation or nonaffiliation state a claim for deprivation of constitutional rights secured by the First and Fourteenth Amendments.” Id. at 349, 96 S.Ct. at 2678. After an extended analysis of the facts of the case and the relevant constitutional principles, the plurality answered that question in the affirmative and concluded that plaintiffs therein had stated a cause of action. The key to the plurality’s conclusion was its holding that: In short, if conditioning the retention of public employment on the employee’s support of the in-party is to survive constitutional challenge, it must further some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights. Id. at 363, 96 S.Ct. at 2685 (footnote omitted). The plurality applied this test to the practice at issue in Elrod — a practice that involved the newly elected Cook County Sheriff’s replacement of all non-civil service employees who were not members of his own Democratic party and who were not sponsored by one of its leaders. Application of the test to that practice led the plurality to conclude that the practice must be struck down as unconstitutional because none of the government interests was sufficiently" }, { "docid": "23253494", "title": "", "text": "COFFIN, Senior Circuit Judge. Panel decisions in these two cases were withdrawn and both cases were reheard en banc. The issues common to both are whether and under what standards the protections of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), should be available to government employees whose employment, while not terminated, was subjected to less advantageous conditions and responsibilities because of the employees’ political affiliation. We convey our views on those legal questions here, and remand for application of the standard to the particular facts of each case. These cases represent a second wave in a tide of litigation arising out of changes in political administrations in Puerto Rico. The first wave involved outright dismissals and has produced a substantial number of opinions. In all of these our task was to determine, in accordance with both Elrod and Branti, (1) whether the agency in which a discharged plaintiff had served was engaged in activity whose direction or pace properly could be affected by partisan political considerations, and (2) whether the particular position of the plaintiff was a policymaking or confidential one. On the basis of these criteria, we considered whether the plaintiffs job was protected against politically motivated discharge. Here the plaintiffs have protected status, and they have not been discharged; the question at issue is what type of employer action short of dismissal will support a claim for violation of the plaintiffs’ right of free political association. I. Facts In November 1984, the Popular Democratic Party (PDP) won the gubernatorial election in Puerto Rico. Defendant Awilda Aponte Roque, a member of the PDP, was then named Secretary of the Department of Public Education. Aponte in turn named defendant Maria P. Scott as director of the Department’s Humacao Region. Plaintiffs, all members of the New Progressive Party (NPP), are officials in the Humacao Region and have been “career” employees with the Department for more than twenty years. Plaintiffs’ action under 42 U.S.C. § 1983 alleges that political discrimination resulted in" }, { "docid": "5820596", "title": "", "text": "of public works. Present case law suggests that these tenure statutes are not inconsistent with the Faulkner Act. N.J. Stat. Ann. § 40A:9:154.6 is a general law as defined by the Faulkner Act, because the tenure statute pertaining to the Superintendent of Public Works is not inconsistent and applies to all municipalities. N.J. Stat. Ann. § 40:69A-28. If an ordinance has been passed pursuant to N.J. Stat. Ann. § 40A:9-154.6, it must be followed by municipalities operating under the provisions of the Faulkner Act whether or not passage of the ordinance granting tenure was accomplished before or after adoption of a new administrative code. As a matter of law, Ordinance 19-1984 is still in effect in the Township of Washington. In December 2000, Plaintiff had been employed by the municipality for about eleven years and as a result qualified for tenure in the position of Director of the Department of Public Works/Director of the Department of Municipal Support Services. Since Plaintiff meets the requirements for tenure, he has established a property interest in his continued employment. 3. What process was Plaintiff entitled to before he could be terminated? Plaintiff was not given a hearing prior to his dismissal as required by Ordinance 19-1984. Therefore, he was denied his due process rights under the fourteenth amendment. As set forth above, Ordinance 19-1984 provides that a tenured Municipal Superintendent of Public Works “shall not be removed from said office for political or other reasons except for good cause shown and upon hearing.” Even if the Township of Washington could prove that good cause existed for Plaintiffs termination, it still failed to afford him a hearing. The Defendants therefore have failed to provide Plaintiff with the procedural due process to which he was entitled. As a result, Plaintiffs motion for summary judgment with respect to his due process claim will be granted. B. Political Discrimination In 1976, the Supreme Court held that the dismissal of certain public employees solely based on partisan political affiliation infringes upon first amendment rights of belief and association. Elrod v. Burns, 427 U.S. 347, 349, 96 S.Ct. 2673," }, { "docid": "4620223", "title": "", "text": "test established by Roth, plaintiff has failed to establish any “legitimate claim of entitlement” under Indiana law to her position as clerk-secretary for the court. Absent a “legitimate claim of entitlement,” plaintiff does not possess a property interest in employment sufficient to trigger the due process requirements of the fourteenth amendment. Because no property interest exists, the court need not reach the question of whether defendant Krajewski followed proper procedure in dismissing McDonald. The due process claim in plaintiff’s complaint is hereby DISMISSED. VI. FIRST AMENDMENT CLAIM In her complaint, McDonald claims defendant Krajewski violated her first amendment rights by discharging her solely because of her political support for Orval Anderson. Defendants seek dismissal of plaintiff’s claim by asserting that McDonald was a confidential employee and, as such, was an exception to the first amendment prohibition against politically motivated patronage discharges. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court held that non-confidential, non-policy-making public employees cannot be discharged solely for exercising their first amendment freedoms such as political beliefs, expressions and associations. Furthermore, first amendment freedoms are protected regardless of the existence of a property right in one’s employment under state law. The Elrod decision firmly established that first amendment freedoms were inviolable and a government employee could only be dismissed on political grounds if he fit under the policymaker or confidential employee exception. In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Court moved away from the policymaking/confi-dential employee analysis and focused on the actual function performed by the employee. As stated by the Court: In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performances of the public office involved. 445 U.S. at 518, 100 S.Ct. at 1295 (emphasis added). The Seventh Circuit’s standard for political patronage dismissal is articulated in Nekolny v. Painter, 653 F.2d 1164 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct." }, { "docid": "2581080", "title": "", "text": "not being discharged except for good cause, the conceded fact that he was discharged without a hearing is alone enough to support the verdict in his favor. The trial court, in a ruling that was more favorable to the defendants than that to which they were entitled, required that the jury also find that Abraham’s discharge was not for just cause. That ruling was erroneous. A post-termination judicial finding respecting an employment dismissal is not a substitute for a pre-termination due process hearing. See Perri v. Aytch, 724 F.2d 362 at 366-367 (3d Cir.1983). The jury verdict, in any event, determined that Abraham was not terminated for just cause. That verdict is amply supported by evidence tending to suggest that the majority of the Board discharged Abraham because he refused to cooperate with them in withholding municipal services from wards represented by members of the minority faction. See App. at 95-108, 166-73, 194-201. With greater enthusiasm, the defendants also contend that they were entitled to summary judgment, and to judgment notwithstanding the verdict, because the trial court erred in holding that Abraham had a Pennsylvania law entitlement. In a well-reasoned portion of the district court’s opinion addressing the due process theory, the district court rejected this contention. See 537 F.Supp. at 866-71. The court noted that Section 26(n) of the Bristol Township Managers Ordinance governed Abraham’s employment. That section provides that “no person shall be discharged without just cause.” Id. at 868. The court also noted that the Pennsylvania Local Agency Law, 2 Pa.Cons.Stat.Ann. §§ 501-508, 551-555 (Purdon Supp.1983), governs proceedings of the Bristol Township Board of Commissioners. That state statute re quires notice and an opportunity to be heard with respect to agency determinations affecting personal or property rights. Id., § 553. Finally, the court noted that under Pennsylvania law, an enforceable expectation in continued employment, guaranteed either by contract or by law, is a property right under the Local Agency Law. See 537 F.Supp. at 869. The court’s treatment of the Pennsylvania Agency Law and the cases construing it is thorough and need not be repeated here. We" }, { "docid": "2581081", "title": "", "text": "trial court erred in holding that Abraham had a Pennsylvania law entitlement. In a well-reasoned portion of the district court’s opinion addressing the due process theory, the district court rejected this contention. See 537 F.Supp. at 866-71. The court noted that Section 26(n) of the Bristol Township Managers Ordinance governed Abraham’s employment. That section provides that “no person shall be discharged without just cause.” Id. at 868. The court also noted that the Pennsylvania Local Agency Law, 2 Pa.Cons.Stat.Ann. §§ 501-508, 551-555 (Purdon Supp.1983), governs proceedings of the Bristol Township Board of Commissioners. That state statute re quires notice and an opportunity to be heard with respect to agency determinations affecting personal or property rights. Id., § 553. Finally, the court noted that under Pennsylvania law, an enforceable expectation in continued employment, guaranteed either by contract or by law, is a property right under the Local Agency Law. See 537 F.Supp. at 869. The court’s treatment of the Pennsylvania Agency Law and the cases construing it is thorough and need not be repeated here. We agree that under those authorities, Abraham had a property interest in his employment. We note as well that the district court’s analysis is consistent with our decision in Perri v. Aytch, 724 F.2d at 365-366, holding that Pennsylvania court regulations authorizing dismissal “for just cause” give rise to a property interest in employment under Pennsylvania law. The verdict in Abraham’s favor on his claim of deprivation of a property interest in employment without due process is amply supported in law and in fact. The trial court did not err in denying defendants’ motions for summary judgment or for judgment notwithstanding the verdict. III. Although the jury did not award punitive damages against the Township, see City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981), it did award such damages against several individual Commission members. These appellants contend that there is insufficient evidence to support the imposition of punitive damages. Consequently, they argue, their motion for judgment notwithstanding the verdict with respect to punitive damages should" }, { "docid": "2581077", "title": "", "text": "process theory at trial. The defendants now appeal from the judgment in Abraham’s favor on the due process theory, contending that the district court erred in denying their motions for judgment notwithstanding the verdict and for a new trial. Defendants also object to the allowance of certain hours in the computation of attorneys’ fees, and to the holding that Abraham is a “prevailing party.” Abraham cross-appeals from the grant of partial summary judgment in favor of the defendants on his Elrod claims and on claims seeking damages for intentional infliction of emotional distress. During oral argument, Abraham conceded that if we affirm the judgment in his favor on due process grounds, then his cross-appeal on the Elrod issue is moot, in that a verdict in his favor on that issue or on the emotional distress claims would not support an award of further relief. We affirm the judgment in Abraham’s favor, and dismiss his cross-appeal as moot. We also affirm the district court’s award of fees. I. The Bristol Township Board of Commissioners is elected from wards. The defendant James Pekarski is its president. During 1978 and 1979, Pekarski led a majority faction of the Board consisting of himself and defendants Anthony Gesualdi, Jennie Cat-tani, Jerry Catania, Marie Mascia, and Anthony Melio. Four of the defendants— Chaser Cotugno, William Sommerer, Robert Lewis, and Albert Wurm, representing wards 1, 2, 4, and 7, respectively — comprised a minority faction of the Board. Until July 25, 1979, Abraham, a civil engineer, served as Director of Roads and Public Property. His amended complaint charges that the faction led by Pekarski directed him to withhold municipal services from Township wards represented by members of the minority faction. It charges further that when he refused to cooperate by withholding road work in those wards, he was discharged without a hearing. Abraham advanced two legal theories in the trial court. He contended, first, that his discharge was in retaliation for his refusal to join a majority political faction in the municipality, and thus was in violation of the federal substantive liberty interest recognized in Elrod v." }, { "docid": "2581076", "title": "", "text": "OPINION OF THE COURT GIBBONS, Circuit Judge: Abraham K. Abraham, the former Director of Roads and Public Property of Bristol Township, Pennsylvania, recovered a jury verdict against the Township and certain members of its Board of Commissioners for $17,365.47 in compensatory damages, and against five individual Commission members for $2,000 each in punitive damages. The district court also awarded Abraham attorneys’ fees as a prevailing party. Abraham’s civil rights action arises out of his dismissal by a majority of the Commission on July 25, 1979. His amended complaint alleges that Abraham had been dismissed solely on the basis of his political beliefs, see Elrod v. Burns, 427 U.S. 347, 355-73, 96 S.Ct. 2673, 2680-89, 49 L.Ed.2d 547 (1976) (Brennan, J.); id. at 374-75, 96 S.Ct. at 2690-91 (Stewart, J.); Branti v. Finkel, 445 U.S. 507, 513-20, 100 S.Ct. 1287, 1292-95, 63 L.Ed.2d 574 (1980), and that he had been deprived of a property interest in employment without a hearing. The district court dismissed Abraham’s Elrod claim on summary judgment; Abraham then prevailed on the due process theory at trial. The defendants now appeal from the judgment in Abraham’s favor on the due process theory, contending that the district court erred in denying their motions for judgment notwithstanding the verdict and for a new trial. Defendants also object to the allowance of certain hours in the computation of attorneys’ fees, and to the holding that Abraham is a “prevailing party.” Abraham cross-appeals from the grant of partial summary judgment in favor of the defendants on his Elrod claims and on claims seeking damages for intentional infliction of emotional distress. During oral argument, Abraham conceded that if we affirm the judgment in his favor on due process grounds, then his cross-appeal on the Elrod issue is moot, in that a verdict in his favor on that issue or on the emotional distress claims would not support an award of further relief. We affirm the judgment in Abraham’s favor, and dismiss his cross-appeal as moot. We also affirm the district court’s award of fees. I. The Bristol Township Board of Commissioners is elected" }, { "docid": "6802009", "title": "", "text": "process under the Fourteenth Amendment, and (2) that he had been discharged because of his political affiliation, in violation of his First Amendment rights of political association. He set forth factual allegations in support of both claims. On April 30, 1976, the district court granted summary judgment against Rosenthal as to all defendants, and he appealed. Rosenthal’s Fourteenth Amendment claim was that he had an “objective expectancy of continued employment” and could be dismissed only for “cause.” Under Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976), “the sufficiency of the claim of entitlement must be decided by reference to state law.” The court below properly ruled against Rosenthal, because under Pennsylvania law, public employees have no contractual entitlement to dismissals only for cause unless the legislature has expressly provided tenure for a given class of employees. Mahoney v. Philadelphia Housing Authority, 13 Pa.Cmwlth. 243, 320 A.2d 459 (1974), cert, denied, 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 (1975). Since the legislature had not provided for tenure in Rosenthal’s job classification, he had no right to a “cause” hearing before discharge. Rosenthal’s First Amendment claim, however, was more substantial. In general, a state may not condition hiring or discharge of an employee in a way which infringes his right of political association. E. g., Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Elrod v. Burns, 427 U.S. 347, 6 S.Ct. 2673, 49 L.Ed.2d 547 (1976). An exception to this First Amendment protection exists in the case of (state employees who formulate policy.) This exception is designed to insure “that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.” Elrod, supra, at 367, 96 S.Ct. 2687. For Rosenthal to obtain relief on his First Amendment claim, then, he had to show that he was a non-policymaking employee. Paragraph 10 of his complaint, Appendix at 6a, alleged that his “was a ‘non-policy-making’ position.” In their answer, Appendix at 13a, defendants Salvitti and the Redevelopment" }, { "docid": "4620222", "title": "", "text": "and efficiently facilitate and transact the business of the division. The officers and persons so appointed shall perform such duties as are prescribed by the senior judge of each respective division and shall serve at the pleasure of the senior judge. The “at the pleasure of” provision in the statute is of critical import in determining whether, under Indiana law, plaintiff possesses a protectable property interest in her employment. The language contained in the statute clearly indicates the Indiana legislature’s intent not to give employees appointed by the court a property interest in their positions. If the legislature intended to create a property interest, it could have done so by excluding the “at the pleasure of” provision. Given the language of the statute, an individual who serves at the pleasure of the judge is similar to an at-will employee. Under Indiana law, at-will government employees possess no property interest in their employment. Indiana Alcoholic Beverage Commission v. Gault, 405 N.E.2d 585 (Ind.App.1980). Because no property interest exists, no procedural due process attaches. Id. Under the test established by Roth, plaintiff has failed to establish any “legitimate claim of entitlement” under Indiana law to her position as clerk-secretary for the court. Absent a “legitimate claim of entitlement,” plaintiff does not possess a property interest in employment sufficient to trigger the due process requirements of the fourteenth amendment. Because no property interest exists, the court need not reach the question of whether defendant Krajewski followed proper procedure in dismissing McDonald. The due process claim in plaintiff’s complaint is hereby DISMISSED. VI. FIRST AMENDMENT CLAIM In her complaint, McDonald claims defendant Krajewski violated her first amendment rights by discharging her solely because of her political support for Orval Anderson. Defendants seek dismissal of plaintiff’s claim by asserting that McDonald was a confidential employee and, as such, was an exception to the first amendment prohibition against politically motivated patronage discharges. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court held that non-confidential, non-policy-making public employees cannot be discharged solely for exercising their first amendment freedoms such" }, { "docid": "13490881", "title": "", "text": "OPINION OF THE COURT SLO VITER, Circuit Judge. I. The underlying fact situation in this case is similar to that which we considered in Marino v. Bowers, No. 80-1395, 657 F.2d 1363 (3d Cir. Sept. 8, 1981), decided today. An employee of a Pennsylvania county who was hired when his political party was in power was discharged when that party lost power. Thereafter, in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court decided patronage dismissals were unconstitutional, and the employee brought suit. Under ordinary circumstances, our holding in the Marino case that Elrod should not be applied retroactively would be determinative of this case as well. Because this case followed a significantly different procedural course than did Marino, it requires separate consideration. II. Plaintiff-appellee, John Weaver, was hired in March 1972 as a park superintendent by the Bucks County Board of Commissioners, then controlled by a Democratic majority. At all times relevant to this litigation, Weaver was a registered member of the Democratic Party and was active in party politics. In January 1976 Weaver was discharged by the newly elected Republican-controlled board. On November 15, 1977, Weaver filed his complaint against the commissioners, individually and in their official capacities, alleging that his discharge was “solely by reason of his political party affiliation” and violated his civil rights, specifically his First Amendment right to free speech and his Fourteenth Amendment right to due process. The suit was brought under 42 U.S.C. §§ 1983, 1985, 1986, 1988. Unlike their response in the later-filed Marino case, defendants did not file a motion to dismiss raising the nonretroactivity of the Elrod doctrine. Instead, defendants filed an answer to the complaint denying that Weaver was dismissed because of his political party affiliation and alleging instead that he was dismissed because of his lack of ability and poor work performance. Defendants also denied that Weaver’s position of park superintendent was non-policy-making, thereby seeking to avoid application of the holding in Elrod v. Burns. In this posture the ease proceeded to a bench trial before the district court for" }, { "docid": "23593826", "title": "", "text": "it is a species of expression.” 501 F.2d at 1098. Although an employer has a legitimate interest in ensuring the “political loyalty of employees ... to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration,” Elrod v. Burns, 427 U.S. 347, 367, 96 S.Ct. 2673, 2687, 49 L.Ed.2d 547 (1976), that interest cannot be elevated to the level of “personality control.” See Rampey, 501 F.2d at 1098. Instead, an employer’s interest “in promoting the efficiency of the public services it performs through its employees,” Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811 (1968), must be balanced against the interests of the employee as a citizen in exercising his First Amendment rights. See Rankin v. McPherson, — U.S. —, —, 107 S.Ct. 2891, 2896-97, 97 L.Ed.2d 315, 324 (1987). And while the precise parameters of these competing interests depend on all the circumstances of the particular case, the Supreme Court has provided some guidance in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In Elrod, a newly elected Democratic sheriff discharged Republican employees of the Cook County, Illinois Sheriffs Department solely because the employees were not affiliated with or sponsored by the Democratic Party. The plurality opinion held that this practice violated the First Amendment rights of the employees. The plurality (consisting of Justices Brennan, White, and Marshall) discerned two interests which were implicated in the case: the individual employee’s right to express political beliefs, and the political system’s interest in robust and uninhibited debate. Id., 427 U.S. at 355-56, 96 S.Ct. at 2680-81. However, Justice Stewart, in his concurring opinion joined by Justice Blackmun, emphasized that the “single substantive question involved ... is whether a nonpoli-cymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs.” Id. at 375, 96 S.Ct. at 2690. The concurring Justices on" }, { "docid": "7555492", "title": "", "text": "OPINION OF THE COURT BECKER, Chief Circuit Judge. Lewis Wetzel brought suit to challenge his discharge as Solicitor for the defendant Northeast Pennsylvania Hospital and Education Association. The district court granted summary judgment for defendants on the ground that Wetzel was a high level public employee, who was- sufficiently involved in policy making to make political affiliation a legitimate consideration for his continued employment. Wetzel’s appeal presents the recurring question of the nature and extent of the exception to the general principle, announced in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and its progeny, that a public employee who is discharged because of his political affiliation has been deprived of First Amendment rights. We will affirm. I. The Northeastern Pennsylvania Hospital and Education Authority was created by Ordinance of the Luzerne County Commissioners to provide tax exempt status to bonds issued under the provisions of the Municipal Authorities Act of 1945, 53 Pa. Stat. §§ 301-22 (West 1997), at the request of health care providers and educational institutions throughout northeastern Pennsylvania. Pursuant to its charter, Luzerne County’s three Commissioners appoint the Authority’s Board of Directors. The Board consists of five members, who serve staggered five-year terms that expire in consecutive years. Pri- or to December 31, 1993, the Authority’s Board consisted of Dr. Charles Carpenter, Chair; Peter Mailloux, Vice Chair; George Ruckno, Jr., Assistant Secretary/Treasurer; Jeanette Dombroski, and Yvonne Bozinski. Carpenter, Mailloux, and Ruckno were Republicans, and Dombroski and Bozinski were Democrats. On March 17,1994, a newly-elected Democratic majority of Commissioners appointed Democrat Peter Butera to replace Ruckno, whose term of office had expired on December 31, 1993. On March 31, 1994, the Board held a reorganization meeting at which the Directors elected Democrat Bozinski to serve as the Board Chair, Democrat Butera as Vice-Chair, and Democrat Dombroski as Treasurer. The Directors also voted to remove appellant Wetzel, a Republican, from his position as Authority Solicitor and replace him with attorney John P. Moses, a Democrat. Wetzel was, and had been, an at-wñl employee of the Authority who had served as its Solicitor for" }, { "docid": "7555494", "title": "", "text": "the previous ten years. Wetzel thereupon initiated a civil action under 42 U.S.C. § 1983 seeking both compensatory and punitive damages arising from his discharge as Solicitor. He sued Rose Tucker and Frank Crossin, the two Democratic Luzerne County Commissioners who were serving at the time of his discharge; Bozinski, Butera, and Dombroski, the three Democratic Authority Directors who were serving at the time; and the Authority itself. Wetzel alleged that, because his discharge was based solely on his affiliation with the Republican Party, the defendants violated his First and Fourteenth Amendment rights to political association and due process. After the close of discovery, defendants moved for summary judgment, contending that, as an at-will employee, Wetzel possessed no property interest in his employment subject to protection under the. Fourteenth Amendment. In the alternative, they argued that political party affiliation is an appropriate requirement for the effective performance of the duties of Authority Solicitor. Wetzel cross-moved for partial summary judgment on the issue of liability, asserting that the record established that he was terminated for political reasons in contravention of his First Amendment rights of association. The district court granted defendants’ Motion for Summary Judgment and denied Wetzel’s Cross-Motion for Partial Summary Judgment, concluding that Wetzel’s discharge was permissible because political affiliation is an appropriate criterion for the effective performance of the duties of the Authority Solicitor. This timely appeal followed. Our familiar standard of review is set forth in the margin. II. As in any case involving the accusation of a politically-motivated discharge of a public employee, we turn first to the Supreme Court’s decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In Elrod, the Court held that discharging certain public employees solely on the basis of their political affiliation infringes upon their First Amendment rights to belief and free association. See Elrod, 427 U.S. at 355-57, 96 S.Ct. at 2680-82. The Court, however, specifically exempted. from this general prohibition the politically-motivated discharge- of persons who hold confidential or" }, { "docid": "18438280", "title": "", "text": "his termination both because he had a property interest in his employment and because stigmatizing reasons were given during the course of his termination. The court took under advisement the question of whether Hogue’s first amendment rights had been violated because, as he claimed, he was terminated because he refused to aid Senator Rainwater in his reelection campaign. The court asked for briefs from the attorneys on the issue of the remedy to be afforded Hogue. At that time, the court advised that it would make specific findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure. The facts set forth in this opinion shall be considered the court’s findings of fact. Plaintiff alleged in his complaint, and contended at the trial, that: a. He was terminated, in violation of his first amendment rights, because of his refusal to aid Senator Rainwater in his reelection campaign; b. Thé reasons given for his termination at the time were stigmatizing and that, thus, he was denied liberty without due process of law in that he was not provided a name clearing hearing prior to his termination; c. He was denied property without due process of law in that he had a property right to his job and was not provided a hearing prior to termination. The court will discuss these issues in the order listed. Political Issue. There are three circumstances which are at least arguably applicable to this case in which the United States Suprenie Court has found that a public employee is entitled to a hearing prior to termination. One of these is where the circumstances show that the employee was terminated because of his political association in violation of his free speech rights granted by the first amendment to the United States Constitution. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547, (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). As the court has already indicated, there is evidence from which a trier of fact could conclude that more than" } ]

[ { "docid": "8810334", "title": "", "text": "requirement of the Due Process Clause as enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The newly-discovered evidence was that one Mary Shaberg, a female who lived with Depp at the time he was arrested, gave testimony during the first grand jury proceeding which was inconsistent with that given by Depp, concerning who, in fact, Depp had called by telephone when he arrived in Miami from Colombia, but prior to his arrest. In a carefully written opinion, the district judge, examining the evidence in the light of the other proofs at trial, denied the motion, holding that at best the testimony showed a discrepancy which, while it may have had some bearing upon Depp’s credibility, did “not create a reasonable doubt of guilt that did not otherwise exist after the trial, and, therefore, the omission does not amount to constitutional error.” The district court was clearly correct in denying the motion. Affirmed. . Our circuit has on at least two other occasions had an opportunity to apply the rule in Luna. In United States v. Rosenbarger, 536 F.2d 715, 720 (6th Cir. 1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977), we held that there was no basis for suppression where the affiant was not aware of an inaccuracy in his statement and there was no evidence that the false information was recklessly asserted. And, in United States v. Roberts, 548 F.2d 665 (6th Cir.), cert. denied, 431 U.S. 920, 97 S.Ct. 2188, 53 L.Ed.2d 232, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 246, 433 U.S. 913, 97 S.Ct. 2984, 53 L.Ed.2d 1098 (1977), Judge Lively, speaking for the court, held that certain inaccuracies in the affidavit were not material to the issue of probable cause and resulted from a good-faith error. . The dissent suggests that our court should exercise its supervisory powers to retain the stricter standards of Luna for application to federal prosecutions. Since our opinion here finds the search and seizure lawful under either standard, we need not definitively address this issue. At the" } ]

[ { "docid": "19018965", "title": "", "text": "a little bit difficult to believe. [R. 167-168, emphasis added]. . See also United States v. Johnson, 558 F.2d 1225 (5th Cir. 1977) (Prosecutor’s four references to defendant’s post-arrest silence held reversible plain error, where comments went to the heart of the sole defense and encouraged the jury to believe the defense was fabricated); Reid v. Riddie, 550 F.2d 1003 (4th Cir. 1977) (In murder prosecution, defendant claimed self defense. The prosecutor asked defendant on cross-examination if he had told the police that he acted in self defense, and in closing argument the prosecutor reminded the jury that defendant answered that he had not. The Court found the error was not harmless. While the evidence against defendant was strong, there was no eyewitness, there was some evidence supporting defendant’s claim of self defense, and the case turned entirely on defendant’s credibility, which the prosecutor had attempted to improperly discredit); United States v. Luna, 539 F.2d 417 (5th Cir. 1976) (Single comment by prosecutor during closing argument, tying defendant’s silence to the implausability of his defense, held reversible error, citing Harp). . Accord, United States v. Sklaroff, 552 F.2d 1156, 1161-1162 (5th Cir. 1977) (following Chapman), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978). See also United States v. Davis, 546 F.2d 583, 594-595 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977); United States v. Wyckoff, 545 F.2d 679 (9th Cir. 1976) (strongly criticizing Government for commenting on defendant’s silence), cert. denied, 429 U.S. 1105, 97 S.Ct. 1135, 51 L.Ed.2d 556 (1977). . See, e. g., Hayton v. Egeler, 555 F.2d 599 (6th Cir. 1977), cert. denied, 434 U.S. 973, 98 S.Ct. 527, 54 L.Ed.2d 463 (1978); Meeks v. Havener, 545 F.2d 9 (6th Cir. 1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977); Jones v. Wyrick, 542 F.2d 1013 (8th Cir. 1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 807 (1977). . Compare Hayton v. Egeler, 555 F.2d 599, 603-604 (6th Cir. 1977) (single isolated question and answer during the course of a" }, { "docid": "23453194", "title": "", "text": "than four; a lengthy colloquy is more prejudicial than a brief one. United States v. Meneses-Davila, 580 F.2d 888, 891-93 (5th Cir. 1978); United States v. Williams, 556 F.2d 65, 67 (D.C. Cir. 1977), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1070 (1977); Hayton v. Egeler, 555 F.2d 599, 603-04 (6th Cir. 1977), cert. denied, 434 U.S. 973, 98 S.Ct. 527, 54 L.Ed.2d 463 (1977); United States v. Skiaroff, 552 F.2d 1156, 1161-62 (5th Cir. 1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978); Chapman v. United States, 547 F.2d 1240, 1249 (5th Cir. 1977), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977); Meeks v. Havener, 545 F.2d 9, 10 (6th Cir. 1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977). . United States v. Dixon, 593 F.2d 626, 629-30 (5th Cir. 1979), cert. denied, 444 U.S. 861, 100 S.Ct. 126, 62 L.Ed.2d 82 (1980); United States v. Whitaker, 592 F.2d 826, 831 (5th Cir. 1979), cert. denied, 444 U.S. 950, 100 S.Ct. 422, 62 L.Ed.2d 320 (1980); United States v. Bridwell, 583 F.2d 1135, 1138-39 (10th Cir. 1978); United States v. Johnson, 558 F.2d 1225, 1230 (5th Cir. 1977); United States v. Williams, 556 F.2d 65, 67 (D.C. Cir. 1977), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1070 (1977); United States v. Skiaroff, 552 F.2d 1156, 1162 (5th Cir. 1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978); United States v. Wycoff, 545 F.2d 679, 682 (9th Cir. 1977), cert. denied, 429 U.S. 1105, 97 S.Ct. 1135, 51 L.Ed.2d 556 (1977); Jones v. Wyrick, 542 F.2d 1013, 1015 (8th Cir. 1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 807 (1977); Booton v. Hanauer, 541 F.2d 296, 299 (1st Cir. 1976). Some courts have expressed doubt about the efficacy of curative instructions. “In no case has a prompt and forceful instruction alone been held sufficient to vitiate the use of post-arrest silence.” Morgan v. Hall, 569 F.2d 1161, 1167-68 (1st Cir. 1978), cert. denied, 437" }, { "docid": "6145412", "title": "", "text": "108, 112 n. 3, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The basic requisite is that a judicial officer be supplied with information sufficient to enable him to make an independent judgment that probable cause exists. Whiteley v. Warden, 401 U.S. 560, 564, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); United States v. Evans, 574 F.2d 352 (6th Cir. 1978). To support the issuance of a warrant, the facts, including credited hearsay statements, must show something more than a suspicion of criminal activity, but need not be sufficient to support a conviction. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); see Jaben v. United States, 381 U.S. 214, 224-25, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965); Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). And in considering the complaint (together with any affidavits) the magistrate must not engage in a hypertechnical reading. Instead, he must employ a common sense approach. See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Because of the preference for the use of warrants by law enforcement officers, and also because of the harshness of the remedy of suppression, which is employed where violations are found, we have held in the context of a search warrant that on review, the magistrate’s determination will be afforded great deference even in doubtful cases; his judgment will be upheld unless it was “arbitrarily exercised.” E..g., United States v. Lee, 581 F.2d 1173, 1177 (6th Cir. 1978); United States v. Swihart, 554 F.2d 264, 270 (6th Cir. 1977); United States v. Giacalone, 541 F.2d 508, 513-14 (6th Cir. 1976) (en banc). Thus even where alternative readings of an affidavit or a complaint are equally susceptible, we will not disturb the magistrate’s choice of one reading over the other. United States v. Hatfield, 599 F.2d 759 at 762 (6th Cir. 1979); United States v. Giacalone, supra, 541 F.2d at 516. Inasmuch as we believe that the same policies apply with similar force in the context of an arrest warrant as they" }, { "docid": "19018966", "title": "", "text": "held reversible error, citing Harp). . Accord, United States v. Sklaroff, 552 F.2d 1156, 1161-1162 (5th Cir. 1977) (following Chapman), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978). See also United States v. Davis, 546 F.2d 583, 594-595 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977); United States v. Wyckoff, 545 F.2d 679 (9th Cir. 1976) (strongly criticizing Government for commenting on defendant’s silence), cert. denied, 429 U.S. 1105, 97 S.Ct. 1135, 51 L.Ed.2d 556 (1977). . See, e. g., Hayton v. Egeler, 555 F.2d 599 (6th Cir. 1977), cert. denied, 434 U.S. 973, 98 S.Ct. 527, 54 L.Ed.2d 463 (1978); Meeks v. Havener, 545 F.2d 9 (6th Cir. 1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977); Jones v. Wyrick, 542 F.2d 1013 (8th Cir. 1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 807 (1977). . Compare Hayton v. Egeler, 555 F.2d 599, 603-604 (6th Cir. 1977) (single isolated question and answer during the course of a long, 10-day trial, held harmless), cert. denied, 434 U.S. 973, 98 S.Ct. 527, 54 L.Ed.2d 463 (1978). . See United States v. Doran, 564 F.2d 1176, 1177 (5th Cir. 1977); United States v. Lewis, 524 F.2d 991, 992 (5th Cir. 1975), cert. denied, 425 U.S. 938, 96 S.Ct. 1673, 48 L.Ed.2d 180 (1976); United States v. Taylor, 508 F.2d 761, 763-764 (5th Cir. 1975). See generally 5 Am. Jur.2d Appeal & Error §§ 713, 717 (1962). . See Doyle v. Ohio, 426 U.S. 610, 619-620 n. 11, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (post-arrest silence can be used to contradict a defendant who claims he told the police his exculpatory story when arrested); United States v. Blalock, 564 F.2d 1180 (5th Cir. 1977); United States v. Helina, 549 F.2d 713, 719 (9th Cir. 1977) (defense contention that Government had failed to fully document its case and that defendant had fully cooperated with the Government opened the door for the prosecutor’s question to defendant asking why defendant had not given certain records to the Government);" }, { "docid": "4044248", "title": "", "text": "finding a clear expression of congressional intent to treat each transported woman as a separate offense, the Court declared that “if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes.” 349 U.S. at 84, 75 S.Ct. at 622. In McFarland, the court found Bell applicable and concluded that the two counts alleged a single punishable offense. However, it added the exception regarding separate acquisition or storage which was the basis of our decision in Calhoun (interpreting 18 U.S.C. app. § 1202(a)(1)) and which governs this case. Numerous cases have followed the McFarland/Calhoun reasoning. See United States v. Hodges, 628 F.2d 350 (5th Cir. 1980); United States v. Bullock, 615 F.2d 1082, 1086 (5th Cir.), cert. denied, 449 U.S. 957, 101 S.Ct. 367, 66 L.Ed.2d 223 (1980) (“18 U.S.C. app. § 1202(a)(1) .. . allows the government to treat each of several firearms not simultaneously received or possessed as separate units of prosecution.”); United States v. Mason, 611 F.2d 49 (4th Cir. 1979); United States v. Powers, 572 F.2d 146 (8th Cir. 1978); United States v. Killebrew, 560 F.2d 729, 734 (6th Cir. 1977); United States v. Rosenbarger, 536 F.2d 715 (6th Cir.), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1976); United States v. Kinsley, 518 F.2d 665 (8th Cir. 1975). The Government in this case failed to show that the ammunition and revolver were acquired at different times. Indeed, the evidence indicates that they were acquired at the same time when stolen during the burglary of a residence in Springfield, Illinois, approximately one month before Oliver’s arrest. There is also nothing to suggest that these items were stored at different places. Agreeing with Oliver that for purposes of § 922(h), firearms and ammunition are interchangeable, we conclude that Calhoun and McFarland are directly on point and that Oliver’s actions underlying Counts I and II cannot stand as two separate offenses but only as one. The Government" }, { "docid": "23207549", "title": "", "text": "as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case.” Sgro v. United States, 287 U.S. 206, 210-11, 53 S.Ct. 138, 140-41, 77 L.Ed. 260 (1932). See also, e.g., United States v. Watson, 423 U.S. 411, 449 n. 14, 96 S.Ct. 820, 840 n. 14, 46 L.Ed.2d 598 (1976) (Marshall, J., dissenting); United States v. Freeman, 685 F.2d 942, 951-52 (5th Cir.1982); United States v. Beltempo, 675 F.2d 472, 476-79 (2d Cir.), cert, denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982); United States v. Button, 653 F.2d 319, 324-25 (8th Cir.1981). Consequently, evidence seized pursuant to a warrant supported by “stale” probable cause is not admissible in a criminal trial to establish the defendant’s guilt. Cases in which staleness becomes an issue arise in two different contexts. First, the facts alleged in the warrant may have been sufficient to establish probable cause when the warrant was issued, but the government’s delay in executing the warrant possibly tainted the search. See, e.g., United States v. Lemmons, 527 F.2d 662 (6th Cir.1975) (five day delay), cert, denied, 429 U.S. 817, 97 S.Ct. 60, 50 L.Ed.2d 77 (1976); United States v. Bed-ford, 519 F.2d 650 (3d Cir.1975) (eight day delay), cert, denied, 424 U.S. 917, 96 S.Ct. 1120, 47 L.Ed.2d 323 (1976). Second, the warrant itself may be suspect because the information on which it rested was arguably too old to furnish “present” probable cause. See, e.g., United States v. Minis, 666 F.2d 134 (5th Cir.), cert, denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982); United States v. Dennis, 625 F.2d 782 (8th Cir.1980); United States v. Rosenbarger, 536 F.2d 715 (6th Cir.1976), cert, denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977). A reviewing court’s task in each category of cases is slightly different. In testing a warrant in the first category, it must decide whether a valid warrant became invalid due to the lapse of time; when considering those in the second category, it must determine whether" }, { "docid": "9999097", "title": "", "text": "search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). The same magistrate issued both warrants only seven days apart at the request of the same agent who was conducting the same investigation. The second affidavit recounted both the first search and the nature of the items collected. The affidavit then provided a list of materials whose titles and covers strongly suggested that they were of the same variety as those already seized. This court has allowed probable cause to be established by reading related affidavits in conjunction with one another. United States v. Manufacturers National Bank of Detroit, 536 F.2d 699 (6th Cir. 1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 735, 50 L.Ed.2d 749 (1977). The October 7th affidavit did not contain the detailed information concerning the Detroit numbers operations which was set forth in the affidavit of the previous day. After repeating the opening paragraphs of the earlier affidavit verbatim, it was limited to a statement of the results of the search of the Wingate residence and the assertion that the evidence gained in this search established probable cause for a search of safety deposit box # 127. The magistrate was entitled to consider the October 6th affidavit in conjunction with the one presented the following day in determining whether probable cause had been established for a search of the bank box of appellants. Both affidavits referred to the same eighteen-month investigation and the alleged complicity of James Wingate in the Detroit numbers operations. The second affidavit referred specifically to the search warrant which the magistrate had issued the previous day. 536 F.2d at 702. See also United States v. Dudek, 560 F.2d 1288 (6th Cir. 1977), cert. denied, 434 U.S. 1037, 98 S.Ct. 774, 54 L.Ed.2d 786 (1978); United States v. Cortellesso, 601 F.2d 28 (6th Cir. 1979), cert. denied, 444 U.S. 1072, 100 S.Ct. 1016, 62 L.Ed.2d 753 (1980). The two warrants read together establish a sufficient nexus between" }, { "docid": "6123343", "title": "", "text": "concession with respect to the December 18, 1981 incident came only after Thomas denied under oath that he had been present; he was then recalled to the stand by the government and confronted with his signed receipt for the gun. . In addition to United States v. Oliver, supra, see United States v. Frankenberry, 696 F.2d 239, 244-46 (3d Cir.1982) (§ 922(h)); United States v. Marino, 682 F.2d 449, 453-55 (3d Cir.1982) (§ 12-2(a)); United States v. Mason, 611 F.2d 49, 50-52 (4th Cir.1979) (§ 922(h)); United States v. McCrary, 643 F.2d 323, 325-28 (5th Cir. 1981) (§ 1202(a)); United States v. Hodges, 628 F.2d 350, 351-52 (5th Cir.1980) (§§ 922(h), 1202(a)); United States v. Carty, 447 F.2d 964, 965-66 (5th Cir. 1971) (§ 922(i)); United States v. Rosenbarger, 536 F.2d 715, 720-21 (6th Cir.1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977) (§ 1202(a)); United States v. Calhoun, 510 F.2d 861, 869 (7th Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1683, 44 L.Ed.2d 104 (1975) (§ 1202(a)); United States v. Powers, 572 F.2d 146, 150-52 (8th Cir.1978) (§ 922(h)); Brown v. United States, 623 F.2d 54, 56-59 (9th Cir.1980) (§ 922(a)(6)); United States v. Valentine, 706 F.2d 282, 292-94 (10th Cir.1983) (§§ 922(h), 1202(a)). Each of these cases dealt with simultaneous receipt of more than one gun; Oliver itself dealt with the precise issue before this court — simultaneous receipt of a gun and ammunition. Our research has not uncovered a single case holding to the contrary. WINTER, Circuit Judge, dissenting in part and concurring in part; Since I would affirm the convictions on counts IV and V, I respectfully dissent. First, the language “receive any firearm or ammunition” seems to me to state that a receipt of a gun and ammunition is two crimes, whether or not the items are simultaneously received. Second, if the purpose of the legislation is to prevent access to firearms by indicted or convicted felons because of the danger that they will use them to commit further crimes, that danger is much greater when a fully loaded firearm" }, { "docid": "2661308", "title": "", "text": "out any form or paperwork in connection with the sale. Special Agent Ingram stated that he asked Hatfield if the gun could be traced and he (Hatfield) said, “No.” On September 20, 1977, I was present at 168 Garden Road, Norris, Tennessee, the residence of Edward C. Long, when Long conferred with John E. Hatfield by telephone. Hatfield stated that he had two firearms for sale which did not require any paperwork. Hatfield suggested that Long meet him at the Mobil Gasoline Station in Caryville, Tennessee, on the following evening at 7:30 p. m. for the sale. . See Tr. of Proceedings on Defendant’s Motion to Suppress, Gov’t App. at 27a-36a. . See, e. g., United States v. Barone, 584 F.2d 118 (6th Cir. 1978), cert. denied, - U.S. -, 99 S.Ct. 1019, 59 L.Ed.2d 73 (1979); United States v. Swihart, 554 F.2d 264 (6th Cir. 1977); United States v. Dudek, 560 F.2d 1288 (6th Cir. 1977), cert. denied, 434 U.S. 1037, 98 S.Ct. 774, 54 L.Ed.2d 786 (1978); United States v. Giacalone, 541 F.2d 508 (6th Cir. 1976); United States v. Rosenbarger, 536 F.2d 715 (6th Cir. 1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977); United States v. Sevier, 539 F.2d 599 (6th Cir. 1976); United States v. Hodge, 539 F.2d 898 (6th Cir. 1976), cert. denied, 429 U.S. 1091, 97 S.Ct. 1100, 51 L.Ed.2d 536 (1977); United States v. Moore, 452 F.2d 569 (6th Cir. 1971), cert. denied, 407 U.S. 910, 92 S.Ct. 2435, 32 L.Ed.2d 684 (1972). . Our research has disclosed only one case which has dealt with this issue. See United States v. Burch, 432 F.Supp. 961 (D.Del.1977)." }, { "docid": "13932496", "title": "", "text": "U.S. at 170, 98 S.Ct. 2674; but see United States v. Hurse, 453 F.2d 128, 130-31 (8th Cir. 1971) , on remand, 477 F.2d 31 (per curiam), cert. denied, 414 U.S. 908, 94 S.Ct. 245, 38 L.Ed.2d 146 (1973); United States v. Swanson, 399 F.Supp. 441 (D.Nev.1975); United States v. Danesi, 342 F.Supp. 889 (D.Conn. 1972) ; State v. Luciow, 308 Minn. 6, 240 N.W.2d 833 (1976) (en banc). The Supreme Court in Franks v. Delaware permitted defendants to challenge the veracity of the warrant affidavit, in effect, to “go behind” the affidavit, and held that where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, then the Fourth Amendment requires that a hearing be held at the defendant’s request. 438 U.S. at 155, 98 S.Ct. at 2676-2677. The search warrant is invalid and the fruits of the search excluded only if 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 material is insufficient to establish probable cause. Id. at 156, 98 S.Ct. 2674; cf. United States v. Hole, 564 F.2d 298, 301 (9th Cir. 1977) (intentional government misrepresentation in warrant affidavit will invalidate warrant whether material or not; reckless misrepresentation, if immaterial, will not); United States v. Lee, 540 F.2d 1205, 1208-09 (4th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976) (discussion of relative merits of positions adopted by various circuits); United States v. Rosenbarger, 536 F.2d 715, 720 (6th Cir. 1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977); United States v. Belculfine, 508 F.2d 58, 61-62 (1st Cir. 1974) (dicta); United States v. Marihart, 492 F.2d 897, 899-900 (8th Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974); United States v. Carmichael, 489 F.2d 983, 987-90 (7th" }, { "docid": "2661307", "title": "", "text": "to me a Colt semi-automatic, .45 caliber pistol, serial number 705C8436, which he stated he had purchased from John Hatfield for $175.00. Long stated that he did not sign any form or paperwork in connection with the sale. Long stated that Hatfield said that when he could get guns without paperwork that he would sell without paperwork. On July 16, 1977, I observed as Special Employee Edward C. Long and Special Agent Willie A. Ingram of the Bureau of Alcohol, Tobacco and Firearms, met John Hatfield at about 3:55 p. m. at Scotties Restaurant in Caryville, Tennessee. I observed as Long bent over and looked into the police cruiser which Hatfield was driving. I met Special Agent Ingram and Long shortly after they separated from Hatfield at 4:00 p. m. Long and Special Agent Ingram turned over to me a Rossi, .38 caliber revolver, serial number D-342680, which Long said he purchased for Ingram from John Hatfield for $75.00. Special Agent Ingram and Long stated that Hatfield did not require either of them to fill out any form or paperwork in connection with the sale. Special Agent Ingram stated that he asked Hatfield if the gun could be traced and he (Hatfield) said, “No.” On September 20, 1977, I was present at 168 Garden Road, Norris, Tennessee, the residence of Edward C. Long, when Long conferred with John E. Hatfield by telephone. Hatfield stated that he had two firearms for sale which did not require any paperwork. Hatfield suggested that Long meet him at the Mobil Gasoline Station in Caryville, Tennessee, on the following evening at 7:30 p. m. for the sale. . See Tr. of Proceedings on Defendant’s Motion to Suppress, Gov’t App. at 27a-36a. . See, e. g., United States v. Barone, 584 F.2d 118 (6th Cir. 1978), cert. denied, - U.S. -, 99 S.Ct. 1019, 59 L.Ed.2d 73 (1979); United States v. Swihart, 554 F.2d 264 (6th Cir. 1977); United States v. Dudek, 560 F.2d 1288 (6th Cir. 1977), cert. denied, 434 U.S. 1037, 98 S.Ct. 774, 54 L.Ed.2d 786 (1978); United States v. Giacalone, 541 F.2d" }, { "docid": "2661306", "title": "", "text": "the Bureau of Alcohol, Tobacco and Firearms and have been employed in this capacity for over 6 years. In the scope of my employment, I enforce the Gun Control Act of 1968. Files located at the Bureau of Alcohol, Tobacco and Firearms office, Knoxville, Tennessee, reflect that a Federal Firearms Dealer’s License is issued to John E. & Sharon S. Hatfield, 419 Spring Circle, LaFollette, Tennessee 37766. The record copy indicates that the license is numbered 1-62-007-01-K7-12171 and will expire on October 29, 1977 unless renewed. In early 1977, I received information from a reliable source that John Hatfield was selling firearms from a Caryville, Tennessee, police cruiser. On April 28, 1977, about 7:05 p. m., I observed as Special Employee Edward C. Long met John E. Hatfield at Scotties Restaurant in Caryville, Tennessee. Both men looked into Hatfield’s vehicle and I observed as Long took a brown paper sack from Hatfield’s vehicle. After Hatfield and Long separated, I met Special Employee Long on the 1-75 interstate, south of the Caryville exit. Long turned over to me a Colt semi-automatic, .45 caliber pistol, serial number 705C8436, which he stated he had purchased from John Hatfield for $175.00. Long stated that he did not sign any form or paperwork in connection with the sale. Long stated that Hatfield said that when he could get guns without paperwork that he would sell without paperwork. On July 16, 1977, I observed as Special Employee Edward C. Long and Special Agent Willie A. Ingram of the Bureau of Alcohol, Tobacco and Firearms, met John Hatfield at about 3:55 p. m. at Scotties Restaurant in Caryville, Tennessee. I observed as Long bent over and looked into the police cruiser which Hatfield was driving. I met Special Agent Ingram and Long shortly after they separated from Hatfield at 4:00 p. m. Long and Special Agent Ingram turned over to me a Rossi, .38 caliber revolver, serial number D-342680, which Long said he purchased for Ingram from John Hatfield for $75.00. Special Agent Ingram and Long stated that Hatfield did not require either of them to fill" }, { "docid": "23453192", "title": "", "text": "silence to undermine Morgan’s story . . . ”). Occasionally a witness will comment spontaneously upon a defendant’s silence. In those instances, so long as curative action is taken, and the prosecution has refrained from highlighting the testimony, such an unsolicited remark is less harmful than similar statements intentionally elicited. See United States v. Williams, 556 F.2d 65, 66-67 (D.C. Cir. 1977), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1070 (1977); United States v. Sklaroff, 552 F.2d 1156, 1161-62 (5th Cir. 1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978). Cf. United States v. Whitaker, 592 F.2d 826, 830-31 (5th Cir. 1979), cert. denied, 444 U.S. 950, 100 S.Ct. 422, 62 L.Ed.2d 320 (1980) (prosecutor inadvertently elicited police testimony regarding defendant’s silence). . United States v. Dixon, 593 F.2d 626, 630 (5th Cir. 1979), cert. denied, 444 U.S. 861, 100 S.Ct. 126, 62 L.Ed.2d 82 (1980); United States v. Whitaker, 592 F.2d 826, 831 (5th Cir. 1979), cert. denied, 444 U.S. 950, 100 S.Ct. 422, 62 L.Ed.2d 320 (1980); United States v. Bridwell, 583 F.2d 1135, 1139 (10th Cir. 1978); United States v. Williams, 556 F.2d 65, 67 (D.C. Cir. 1977), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1070 (1977); Stone v. Estelle, 556 F.2d 1242, 1246 (5th Cir. 1977), cert. denied, 434 U.S. 1019, 98 S.Ct. 742, 54 L.Ed.2d 767 (1978); Hayton v. Egeler, 555 F.2d 599, 603 (6th Cir. 1977), cert. denied, 434 U.S. 973, 98 S.Ct. 527, 54 L.Ed.2d 463 (1977); United States v. Davis, 546 F.2d 583, 595 (5th Cir. 1977), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977); Meeks v. Havener, 545 F.2d 9, 10 (6th Cir. 1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977); United States v. Wycoff, 545 F.2d 679, 682 (9th Cir. 1977), cert. denied, 429 U.S. 1105, 97 S.Ct. 1135, 51 L.Ed.2d 556 (1977); Jones v. Wyrick, 542 F.2d 1013, 1014-15 (8th Cir. 1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 807 (1977). . One reference is less damaging" }, { "docid": "6145413", "title": "", "text": "13 L.Ed.2d 684 (1965). Because of the preference for the use of warrants by law enforcement officers, and also because of the harshness of the remedy of suppression, which is employed where violations are found, we have held in the context of a search warrant that on review, the magistrate’s determination will be afforded great deference even in doubtful cases; his judgment will be upheld unless it was “arbitrarily exercised.” E..g., United States v. Lee, 581 F.2d 1173, 1177 (6th Cir. 1978); United States v. Swihart, 554 F.2d 264, 270 (6th Cir. 1977); United States v. Giacalone, 541 F.2d 508, 513-14 (6th Cir. 1976) (en banc). Thus even where alternative readings of an affidavit or a complaint are equally susceptible, we will not disturb the magistrate’s choice of one reading over the other. United States v. Hatfield, 599 F.2d 759 at 762 (6th Cir. 1979); United States v. Giacalone, supra, 541 F.2d at 516. Inasmuch as we believe that the same policies apply with similar force in the context of an arrest warrant as they do in the context of a search warrant, we apply the same standards of review here. Cf. Whiteley v. Warden, supra, 401 U.S. at 564, 91 S.Ct. 1031; Aguilar v. Texas, supra, 378 U.S. at 112 n. 3, 84 S.Ct. 1509 (cases state that the fourth amendment’s probable cause requirement applies in a like fashion both to arrest warrants and to search warrants). In reviewing the complaint in this case, which is set out in the margin, we believe that sufficient facts were presented to enable us to conclude that the magistrate’s determination was not arbitrary. The essence of the violation charged was stated in the opening paragraph as follows: That on or about March 31, 1977, at Louisville, Kentucky in the Western District of Kentucky John A. Kaye did knowingly make false statements and reports and pledged worthless overvalued securities for the purpose of influencing the loan action of an institution whose accounts are insured by the Federal Deposit Insurance Corporation. This conclusion is sufficiently supported, we believe, by the sum of the following" }, { "docid": "2661302", "title": "", "text": "each instance we have consistently held that great deference should be accorded a magistrate’s determination of probable cause. We stated in United States v. Giacalone, 541 F.2d 508, 513-14 (6th Cir. 1976): once a Magistrate has found probable cause and has issued a warrant, his judgment is conclusive unless arbitrarily exercised, since the purpose of the Fourth Amendment has been served by his review of the affidavit. We further stated in Giacalone that: When a court is faced with a situation wherein there is at issue the quantum of evidence necessary to be alleged to support a finding of probable cause, and when the affidavit arguably shows circumstances which could support a determination that evidence of a federal crime will probably be found in the place to be searched, the court should follow the practice expressed in United States v. Lewis, 392 F.2d 377, 379 (2d Cir.), cert. denied, 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 170 (1968): One of the best ways to foster increased use of warrants is to give law enforcement officials the assurance that when a warrant is obtained in a close case, its validity will be upheld. 541 F.2d at 516 (Emphasis added.) The application of the above well settled principles leads us to reverse the district court. The affidavit in question, when read in a commonsense and non-hypertechnical fashion, does not lead one to conclude that the magistrate’s finding of probable cause to search defendant’s premises for illegal weapons was arbitrary. • The affidavit related the fact that the defendant was a properly licensed federal firearms dealer at the time of the request for the warrant. This license revealed the defendant’s business location, the premises to be searched. The affidavit contained information that Hatfield had on two prior occasions sold firearms out of his police cruiser without compiling the required information. The affidavit further informed the magistrate that on September 20, 1977, less than twenty-four hours prior to the issuance of the warrant, Hatfield informed ATF Special Employee Long that “he had two firearms for sale which did not require paperwork.” It was" }, { "docid": "23453193", "title": "", "text": "(1980); United States v. Bridwell, 583 F.2d 1135, 1139 (10th Cir. 1978); United States v. Williams, 556 F.2d 65, 67 (D.C. Cir. 1977), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1070 (1977); Stone v. Estelle, 556 F.2d 1242, 1246 (5th Cir. 1977), cert. denied, 434 U.S. 1019, 98 S.Ct. 742, 54 L.Ed.2d 767 (1978); Hayton v. Egeler, 555 F.2d 599, 603 (6th Cir. 1977), cert. denied, 434 U.S. 973, 98 S.Ct. 527, 54 L.Ed.2d 463 (1977); United States v. Davis, 546 F.2d 583, 595 (5th Cir. 1977), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977); Meeks v. Havener, 545 F.2d 9, 10 (6th Cir. 1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977); United States v. Wycoff, 545 F.2d 679, 682 (9th Cir. 1977), cert. denied, 429 U.S. 1105, 97 S.Ct. 1135, 51 L.Ed.2d 556 (1977); Jones v. Wyrick, 542 F.2d 1013, 1014-15 (8th Cir. 1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 807 (1977). . One reference is less damaging than four; a lengthy colloquy is more prejudicial than a brief one. United States v. Meneses-Davila, 580 F.2d 888, 891-93 (5th Cir. 1978); United States v. Williams, 556 F.2d 65, 67 (D.C. Cir. 1977), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1070 (1977); Hayton v. Egeler, 555 F.2d 599, 603-04 (6th Cir. 1977), cert. denied, 434 U.S. 973, 98 S.Ct. 527, 54 L.Ed.2d 463 (1977); United States v. Skiaroff, 552 F.2d 1156, 1161-62 (5th Cir. 1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978); Chapman v. United States, 547 F.2d 1240, 1249 (5th Cir. 1977), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977); Meeks v. Havener, 545 F.2d 9, 10 (6th Cir. 1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977). . United States v. Dixon, 593 F.2d 626, 629-30 (5th Cir. 1979), cert. denied, 444 U.S. 861, 100 S.Ct. 126, 62 L.Ed.2d 82 (1980); United States v. Whitaker, 592 F.2d 826, 831 (5th Cir. 1979), cert. denied, 444 U.S." }, { "docid": "13932497", "title": "", "text": "only if 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 material is insufficient to establish probable cause. Id. at 156, 98 S.Ct. 2674; cf. United States v. Hole, 564 F.2d 298, 301 (9th Cir. 1977) (intentional government misrepresentation in warrant affidavit will invalidate warrant whether material or not; reckless misrepresentation, if immaterial, will not); United States v. Lee, 540 F.2d 1205, 1208-09 (4th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976) (discussion of relative merits of positions adopted by various circuits); United States v. Rosenbarger, 536 F.2d 715, 720 (6th Cir. 1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977); United States v. Belculfine, 508 F.2d 58, 61-62 (1st Cir. 1974) (dicta); United States v. Marihart, 492 F.2d 897, 899-900 (8th Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974); United States v. Carmichael, 489 F.2d 983, 987-90 (7th Cir. 1973) (en banc) (leading case); United States v. Baynes, 400 F.Supp. 285, 296-97 & n.20 (E.D.Pa.1975); but cf. United States v. Thomas, 489 F.2d 664, 669 (5th Cir. 1973), cert. denied, 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64 (1975) (material misrepresentation will invalidate warrant); United States v. Harwood, 470 F.2d 322, 325 (10th Cir. 1972); see also Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825 (1971). Assuming for the purpose of discussion that appellant made a substantial preliminary showing of intentional falsity or reckless disregard for the truth which was necessary to the finding of probable cause by offering the affidavits of the visitors to the apartment, we conclude that appellant failed to establish his allegation of perjury or reckless disregard by a preponderance of the evidence. At the hearing before the magistrate judge on the motions for disclosure and suppression of evidence, appellant offered the seventeen affidavits. The government produced the affiant, Officer Johnson, who testified about his conversation with the informant, applying for the" }, { "docid": "2661303", "title": "", "text": "officials the assurance that when a warrant is obtained in a close case, its validity will be upheld. 541 F.2d at 516 (Emphasis added.) The application of the above well settled principles leads us to reverse the district court. The affidavit in question, when read in a commonsense and non-hypertechnical fashion, does not lead one to conclude that the magistrate’s finding of probable cause to search defendant’s premises for illegal weapons was arbitrary. • The affidavit related the fact that the defendant was a properly licensed federal firearms dealer at the time of the request for the warrant. This license revealed the defendant’s business location, the premises to be searched. The affidavit contained information that Hatfield had on two prior occasions sold firearms out of his police cruiser without compiling the required information. The affidavit further informed the magistrate that on September 20, 1977, less than twenty-four hours prior to the issuance of the warrant, Hatfield informed ATF Special Employee Long that “he had two firearms for sale which did not require paperwork.” It was not unreasonable for the magistrate to infer from the above facts that Hatfield probably maintained illegal firearms somewhere on his premises. The defendant disagrees with this interpretation of the facts and states a common sense reading of the affidavit would lead a reasonable person to conclude that Hatfield, by selling the firearms from his police cruiser, was making every effort to keep the firearms away from his business premises. It may be that these alternative readings of the affidavit are equally reasonable, but it is neither our nor the district court’s function as reviewing courts to substitute our interpretation of the facts in the affidavit for that of the magistrate. “In dealing with probable cause ... as the very name implies, we deal with probabilities,” United States v. Hodge, 539 F.2d 898, 903 (6th Cir. 1976), quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), and “deference is to be accorded an independent judicial officer’s finding of probable cause, with doubtful cases governed largely by the preference which" }, { "docid": "23297215", "title": "", "text": "the guns to Valentine “at his house” in mid-to-late-March of 1981. IV R. 174. Valentine says there was no proof that he ever handled the guns. The guns were found at the Sixth Street house on Valentine’s arrest on April 7, 1981. . The Government has suggested that we apply the concurrent sentence doctrine and decline to consider these issues. We believe, however, that they should be addressed, particularly because of the collateral consequences of the criminal convictions. See United States v. Montoya, 676 F.2d 428 (10th Cir.1982). . At least seven other circuits have now reached similar results under either section 922 or section 1202, or under both. See, e.g., United States v. Marino, 682 F.2d 449, 450-55 (3d Cir.1982) (§ 1202); United States v. McCrary, 643 F.2d 323, 325-28 (5th Cir. 1981) (§ 1202); Brown v. United States, 623 F.2d 54, 56-59 (9th Cir. 1980) (false statements in connection with acquisition of firearm, § 922(a)(6)); United States v. Mason, 611 F.2d 49 (4th Cir. 1979) (receipt under § 922(h)(1) and false statements under § 922(a)(6)); United States v. Powers, 572 F.2d 146, 150-52 (8th Cir.1978) (extending Kinsley to case involving receipt under § 922(h)(1)); United States v. Rosenbarger, 536 F.2d 715, 720-22 (6th Cir.1976) (§ 1202), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977); United States v. Calhoun, 510 F.2d 861, 869 (7th Cir.) (§ 1202), cert. denied, 421 U.S. 950, 95 S.Ct. 1683, 44 L.Ed.2d 104 (1975); McFarland v. Pickett, 469 F.2d 1277 (7th Cir. 1972) (§ 922(j), concealing stolen firearms); United States v. Carty, 447 F.2d 964, 965-66 (5th Cir. 1971) (§ 922(i), interstate transportation of stolen firearms). Cf. Sanders v. United States, 441 F.2d 412 (10th Cir. 1971) (simultaneous possession of two unregistered firearms is two offenses under 26 U.S.C. § 5861(d); Bell v. United States distinguished because § 5861(d) uses the article “a” instead of “any”), cert. denied, 404 U.S. 846, 92 S.Ct. 147, 30 L.Ed.2d 82 (1971). We also note that in United States v. Wolfen-barger, 696 F.2d 750 (10th Cir.1982), we affirmed convictions on two counts under §" }, { "docid": "2661305", "title": "", "text": "our legal system gives to warrants.” United States v. Jenkins, 525 F.2d 819, 824 (6th Cir. 1975). We therefore hold that the affidavit contains sufficient facts to indicate that the magistrate’s finding of probable cause to search defendant’s premises for illegal firearms was not arbitrary and the district court erred in holding to the contrary. In light of our finding of probable cause, it is unnecessary to decide the remaining constitutional issue — whether a search warrant can be severed and the search conducted under the warrant considered as two searches, one supported and one not supported by probable cause. This issue raises important fourth amendment questions, the decision of which we leave to another day and another case. See Ashwander v. TV A, 297 U.S. 288, 346-48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J. concurring). Accordingly, the order of the district court is reversed and the case is remanded for further proceedings consistent with this opinion. . Agent McGarity’s affidavit is as follows: I, R. Grant McGarity, and a Special Agent with the Bureau of Alcohol, Tobacco and Firearms and have been employed in this capacity for over 6 years. In the scope of my employment, I enforce the Gun Control Act of 1968. Files located at the Bureau of Alcohol, Tobacco and Firearms office, Knoxville, Tennessee, reflect that a Federal Firearms Dealer’s License is issued to John E. & Sharon S. Hatfield, 419 Spring Circle, LaFollette, Tennessee 37766. The record copy indicates that the license is numbered 1-62-007-01-K7-12171 and will expire on October 29, 1977 unless renewed. In early 1977, I received information from a reliable source that John Hatfield was selling firearms from a Caryville, Tennessee, police cruiser. On April 28, 1977, about 7:05 p. m., I observed as Special Employee Edward C. Long met John E. Hatfield at Scotties Restaurant in Caryville, Tennessee. Both men looked into Hatfield’s vehicle and I observed as Long took a brown paper sack from Hatfield’s vehicle. After Hatfield and Long separated, I met Special Employee Long on the 1-75 interstate, south of the Caryville exit. Long turned over" } ]

[ { "docid": "16719615", "title": "", "text": "the use of force. The City also trains and certifies its officers on the proper use of tasers. Officer Kovach, along with all other active officers completed the required training in 2005 and 2006. It cannot be said that there is a likelihood that a similar situation would reoccur, and it cannot be said that it was predictable that any officer lacked specific tools or would violate citizens’ rights. In light of this evidence, a reasonable juror could not infer that the City failed to adequately train its officers or that such failure, if any, amounted to deliberate indifference. Consequently, the City’s motion for summary judgment is granted with respect to this claim. 2. Ratification A plaintiff can establish a municipal liability claim by demonstrating that a final municipal policymaker approved of a subordinate’s decision and the basis for it, approved of an investigation that was so inadequate, or failed to punish the responsible parties, so as to constitute a ratification of their alleged use of excessive force. Wright v. City of Canton, 138 F.Supp.2d 955, 966 (N.D.Ohio 2001), citing Praprotnik, 485 U.S. at 127, 108 S.Ct. 915; Johnson v. City of Memphis, 2008 WL 111978, at *4, 2008 U.S. Dist. LEXIS 1199, at *11 (W.D.Tenn. Jan. 8, 2008). The Sixth Circuit has recognized such ratification claims. In Marchese v. Lucas, 758 F.2d 181 (6th Cir.1985), a prisoner threatened a law enforcement officer. Later, a sheriffs deputy allowed someone to enter a prisoner’s cell to violently beat him. A state district court judge ordered the sheriff to investigate the incident but the sheriff failed to do so. The Sixth Circuit held that: [t]he Sheriffs subsequent failure to order and direct an investigation which disclosed exactly who were the perpetrators of these brutal violations to the U.S. Constitutional and to administer censure and punishment served to confirm the existence of an unstated ‘policy’ of toleration of illegal brutality toward any county prisoner who threatened the life of a sheriffs deputy. Id. at 184 In Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir.1989), a sheriff failed to investigate a paraplegic" } ]

[ { "docid": "23328679", "title": "", "text": "policymakers. That being so, she lacked final policymaking authority over plea agreements. In summary, the district court did not err by holding that Iopa lacked final poli-cymaking authority to decide whom to prosecute and whether to approve plea agreements. B. Ratification A municipality also can be liable for an isolated constitutional violation if the final .policymaker “ratified” a subordinate’s actions. See Praprotnik, 485 U.S. at 127, 108 S.Ct. 915. Ordinarily, ratification is a question for the jury. See Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir.1995). However, as with any jury question, a plaintiff must establish that there is a genuine issue of material fact regarding whether a ratification occurred. See, e.g., Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.), as amended, 125 F.3d 1281 (9th Cir.1997). The district court held that Plaintiffs could not satisfy that requirement. 1. Christie The district court correctly concluded that plaintiff Christie cannot establish ratification. To show ratification, a plaintiff must prove that the “authorized policymakers approve a subordinate’s decision and the basis for it.” Praprotnik, 485 U.S. at 127, 108 S.Ct. 915; see Gillette, 979 F.2d at 1348 (refusing to find ratification, because “[t]here is no evidence that the City manager made a deliberate choice to endorse the Fire Chiefs decision and the basis for it”). Accordingly, ratification requires, among other things, knowledge of the alleged constitutional violation. See Garrison v. Burke, 165 F.3d 565, 572 n. 6 (7th Cir.1999) (holding that the municipality was not liable under § 1983, because it had no knowledge of the alleged constitutional violations); Gattis v. Brice, 136 F.3d 724, 727 (11th Cir.1998) (stating a similar proposition). Christie provided no evidence, in conjunction with his summary judgment motion, that Kimura knew of Iopa’s actions before the criminal ease against him was dismissed (i.e., before the alleged constitutional violations ceased). That being so, Christie has not established a genuine issue of material fact as to the question whether Kimura ratified Iopa’s actions. 2. Anderson After Christie’s case was dismissed, but while Anderson’s case was still pending, both Plaintiffs filed this action against" }, { "docid": "16719605", "title": "", "text": "F.3d 375, 387 (6th Cir.1994), the Court cannot determine, as a matter of law, that qualified immunity does not attach. If a jury finds that Officer Kovach’s view of the facts is correct, and no constitutional violation occurred, qualified immunity may shield Officer Kovach from any liability for Ms. Gill’s alleged injuries. B. Claims Against the City, Chief Mandopoulos and Mr. Franklin Ms. Gill has also sued the City, Chief Mandopoulos, and Mr. Franklin in their official capacities. As a rule, local governments may not be sued under 42 U.S.C. § 1983 for an injury inflicted solely by employees or agents under a theory of respondeat superior. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Instead, it is when the execution of a government’s policy or custom ... inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694, 98 S.Ct. 2018; DePiero v. City of Macedonia, 180 F.3d 770, 786 (6th Cir.1999). Moreover, the policy or custom must be the moving force of the constitutional violation in order to establish municipal liability. Monell, 436 U.S. at 690, 98 S.Ct. 2018. Liability against a municipality is available pursuant to multiple theories. See id. at 660-61, 98 S.Ct. 2018 (an express municipal policy); City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (a “widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and well settled as to constitute a custom or usage’ with the force of law”); City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (a failure to act where the “inadequacy [of the existing practice is] so likely to result in the violation of constitutional rights, that the policymaker ... can reasonably be said to have been deliberately indifferent to the [plaintiffs rights]”); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1247 (6th Cir.1989) (a ratification of a municipal employee’s unconstitutional acts by failing to meaningfully investigate and punish allegations of" }, { "docid": "324315", "title": "", "text": "the plaintiffs have not come forward with any evidence that would indicate that Sgt. Robinson is a final policymaker for the Village. Indeed, case law indicates that a police sergeant is not a policymaker under state law. See Illinois v. Fullwiley, 304 Ill.App.3d 44, 237 Ill.Dec. 861, 710 N.E.2d 491, 495 (1999) (holding that police sergeant was supervisor but not “ ‘policy-making level’ official”); Ill v. Roland, 812 F.Supp. 855, 861 (N.D.Ill.1993) (holding that police sergeant is not invested with any final policymaking authority). The defendants admit that Chief Leach was invested with final policy-making authority for the Village, and the plaintiffs claim that he ratified the officers’ actions by failing to discipline them, If an authorized policymaker approves a subordinate’s decision and the basis for it, the policymaker’s ratification is chargeable to the municipality. Monfils v. Taylor, 165 F.3d 511, 517 (7th Cir.1998) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). But the undisputed evidence here shows that Chief Leach ordered an independent investigation into the shooting incident, though none of the officers was reprimanded or disciplined. Ratification requires more explicit approval than merely failing to discipline after an investigation. See id. Finally, a municipal custom or practice may be established by proof that policymaking officials knew of an established custom or practice and acquiesced in it. McNabola v. Chicago Transit Auth., 10 F.3d 501, 511 (7th Cir.1993). However, because the custom or practice must be “widespread” or entrenched, a single incident of unconstitutional conduct by a non-policymaker is generally insufficient to establish liability based on municipal acquiescence in a custom or practice of unconstitutional conduct. See Roach, 111 F.3d at 548; Sims, 902 F.2d at 542-43. Instead, “it is the series [of prior incidents] that lays the premise of the system of inference” of a municipal custom or practice. Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir.1995). The plaintiffs argue that the officers’ knowledge or belief that their actions would be approved by policymakers establishes acquiescence in a custom or practice, and cite Grandstaff v. City" }, { "docid": "10808018", "title": "", "text": "municipal' liability when final policymaker directed deputies to forcibly enter physician’s office in violation of Fourth Amendment). Finally, a policy may ratify a municipal employee’s unconstitutional acts. City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (“If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because the decision is final”). Here, Wright bases his municipal liability claim on a theory of ratification. He says the City ratified Jackson and Vine-sky’s alleged use of excessive force by failing to meaningfully investigate them conduct. The United States Court of Appeals for the Sixth Circuit has twice found that a municipality ratifies its employees’ unconstitutional acts by failing to meaningfully investigate those acts. Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir. 1989); Marchese v. Lucas, 758 F.2d 181 (6th Cir.1985). Both cases involve facts remarkably similar to those alleged in this case. In Márchese, a county sheriff failed to investigate his deputies’ beating of an inmate who earlier threatened a deputy’s life. The court found that the sheriffs failure to investigate constituted ratification of his deputies’ unconstitutional acts. And because the sheriff acted as the county’s final policymaker with regard to law enforcement matters, the court considered this ratification as municipal policy for purposes of § 1983. Marchese, 758 F.2d at 188. Likewise, in Leach, a county sheriff did not investigate his employees’ failure to provide for the medical needs of a paraplegic inmate. The court relied on Márchese and imposed liability on the municipality: Thus, like Márchese, the Sheriff here ratified the unconstitutional acts. In Márchese, such ratification was deemed sufficient to attach liability to the sheriff and the County. We find equally sufficient in this context. Leach, 891 F.2d at 1248. Based on Márchese and Leach, Wright can establish his municipal liability claim by showing (1) a final municipal policymaker approved an investigation into Jackson and Vinesky’s conduct (2) that was so inadequate as to constitute a ratification of them alleged use of excessive force. Wright offers sufficient evidence" }, { "docid": "10808019", "title": "", "text": "who earlier threatened a deputy’s life. The court found that the sheriffs failure to investigate constituted ratification of his deputies’ unconstitutional acts. And because the sheriff acted as the county’s final policymaker with regard to law enforcement matters, the court considered this ratification as municipal policy for purposes of § 1983. Marchese, 758 F.2d at 188. Likewise, in Leach, a county sheriff did not investigate his employees’ failure to provide for the medical needs of a paraplegic inmate. The court relied on Márchese and imposed liability on the municipality: Thus, like Márchese, the Sheriff here ratified the unconstitutional acts. In Márchese, such ratification was deemed sufficient to attach liability to the sheriff and the County. We find equally sufficient in this context. Leach, 891 F.2d at 1248. Based on Márchese and Leach, Wright can establish his municipal liability claim by showing (1) a final municipal policymaker approved an investigation into Jackson and Vinesky’s conduct (2) that was so inadequate as to constitute a ratification of them alleged use of excessive force. Wright offers sufficient evidence to make this showing. The parties do not dispute that Canton Police Chief Thomas Wyatt approved the internal affairs investigation into the incident that led to Wright’s injuries. Under Ohio Revised Code § 737.12, the chief of police is the final policymaker with regard to investigations that do not result in disciplinary action. Because the investigation into Jackson and Vinesky’s conduct did not result in their discipline, Wyatt’s approval of the investigation constitutes municipal policy. And a reasonable juror could conclude Wyatt’s approval of the investigation meant that he ratified Jackson and Vine-sky’s alleged use of excessive force. Specifically, Wright offers evidence showing the investigation was not designed to discover what actually happened to Wright while in Jackson and Vinesky’s custody. Most notably, Captain Myers never interviewed Dr. Hamrick as part of his internal affairs investigation. Myers never discussed Wright’s injuries with Dr. Hamrick. Nor did he inquire as' to Jackson and Vinesky’s behavior the night of the incident. Thus, Myers concluded his investigation without knowing that Dr. Hamrick (1) insists Jackson and Vinesky gave" }, { "docid": "17424948", "title": "", "text": "policy the City had regarding the use of riot guns loaded with wooden baton rounds allowed those guns to be used before extensive warnings, warning shots, or tear gas — all of which would have decreased the risk of serious bodily injury. The City therefore had a policy that caused the excessive force, thereby causing Plaintiffs injury. The second ground for municipal liability here is based on the City’s ratification of the unlawful conduct. Defendants are correct that, generally speaking, evidence of later events cannot establish that a given violation was caused by an official custom or policy. See Joy v. City of Dayton, No. C-3-90-132, 1991 WL 1092505, at *9-10 (S.D.Ohio June 28,1991); see also Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir.1994) (finding insufficient evidence that the City’s failure to investigate unconnected misconduct was the moving force behind the instant constitutional violation). A municipality may, however, ratify its employees’ acts — thereby subjecting itself to § 1983 liability — by failing meaningfully to investigate those acts. Wright v. City of Canton, 138 F.Supp.2d 955, 966 (N.D.Ohio 2001); see Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246-48 (6th Cir.1989); Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir.1985). Viewed in this light, evidence that a municipality inadequately investigated an alleged constitutional violation can be seen as evidence of a policy that would condone the conduct at issue. In Márchese, a prisoner who had threatened a police officer was twice beaten while in police custody. The sheriff failed either to investigate the incident or to punish the officers involved. The court initially noted that even though the sheriff was not present during the beatings, he was sued in his official capacity and, “in that capacity, he had a duty to both know and act.” Márchese, 758 F.2d at 188. The court concluded that the official policy of the sheriff and the county (1) did not require appropriate training or discipline of the police officers, and (2) would not engender either investigation or sanctions against officers when such an assault occurred. The court stated, “It is this" }, { "docid": "17922593", "title": "", "text": "(2) the failure to do so was likely to cause further constitutional violations; (3) County policymakers were aware of any deficiencies in Greer’s training and deliberately decided not to re-train him; or (4) had Greer been re-trained, Silva would have survived or otherwise fared better. In sum, Plaintiffs have failed to provide evidence that could support a finding of an unconstitutional custom, policy, or practice of inaction that caused Silva’s death or otherwise violated his or Plaintiffs’ constitutional rights. Accordingly, the Court GRANTS the County’s motion for summary judgment on Plaintiffs’ sixth and eighth causes of action for Monell liability. 3. Seventh Cause of Action: Municipal Liability — Ratification Finally, Plaintiffs contend the County is liable because it ratified the deputies’ unconstitutional conduct. Doc. 130 at 30. A municipality may be liable under Monell for the unconstitutional conduct of its employees when a municipal official with final policymaking authority knows of the constitutional violation and approves it. See Lytle v. Carl, 382 F.3d 978, 987 (9th Cir.2004); Praprotnik, 485 U.S. at 127, 108 S.Ct. 915. “There must, however, be evidence of a conscious, affirmative choice on the part of the authorized policymaker.” Clouthier, 591 F.3d at 1250 (citation and quotation marks omitted). “If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.” Praprotnik, 485 U.S. at 127, 108 S.Ct. 915. The County moves for summary judgment on this Monell claim, arguing that the County never ratified its deputies’ conduct because “no official determination has been made with respect to [their] conduct.” Doc. 125 at 25. Plaintiffs counter only by stating that Greer testified that he was told that his conduct was within County policy. See Doc. 130 at 30. Plaintiffs do not cite to any portion of Greer’s testimony to support this contention. The only seemingly relevant aspect of his testimony that the Court can locate, however, does not support Plaintiffs’ position. When asked whether anyone had discussed his conduct in the Lucero incident with him, Greer testified that he was told that he" }, { "docid": "23328678", "title": "", "text": "proposed indictment, make any changes, or contact [Ashida] if she had any concerns.” If Iopa disagreed with Ashi-da’s decision to prosecute Plaintiffs, she had to contact Ashida; she could not decide unilaterally to drop the case. The foregoing discussion establishes that Iopa lacked final policymaking authority to initiate or terminate prosecutions. Her decision to prosecute a case was constrained by policies not of her making, and she was subject to review by the municipality’s authorized policymakers. Iopa likewise lacked final policymaking authority over plea agreements. First, the County Prosecutor, not Iopa, created standards and criteria to govern plea agreements. Second, although Iopa exercised discretion when making and negotiating plea agreements, she generally did not have authority to enter into those agreements when significant concessions were at stake: “All felony plea agreements which contemplate the reduction [or] dismissal of charges shall be approved by the First Deputy or the Prosecuting Attorney.” Again, Iopa’s plea agreements were constrained by policies not of her making, and her significant plea agreements were subject to review by the municipality’s authorized policymakers. That being so, she lacked final policymaking authority over plea agreements. In summary, the district court did not err by holding that Iopa lacked final poli-cymaking authority to decide whom to prosecute and whether to approve plea agreements. B. Ratification A municipality also can be liable for an isolated constitutional violation if the final .policymaker “ratified” a subordinate’s actions. See Praprotnik, 485 U.S. at 127, 108 S.Ct. 915. Ordinarily, ratification is a question for the jury. See Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir.1995). However, as with any jury question, a plaintiff must establish that there is a genuine issue of material fact regarding whether a ratification occurred. See, e.g., Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.), as amended, 125 F.3d 1281 (9th Cir.1997). The district court held that Plaintiffs could not satisfy that requirement. 1. Christie The district court correctly concluded that plaintiff Christie cannot establish ratification. To show ratification, a plaintiff must prove that the “authorized policymakers approve a subordinate’s decision and the basis" }, { "docid": "12197", "title": "", "text": "that body has delegated policy-making authority.” Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984). As discussed above, Plaintiffs have properly alleged that Chief Krahn was a final policymaker for Stafford. They allege actual and/or constructive knowledge by Chief Krahn, as chief of police, of the alleged unconstitutional customs. Accordingly, they have properly alleged knowledge on the part of Stafford. . Benavides considered and rejected the converse of Defendants’ argument, \"a per se rule that a county is deliberately indifferent to its jailers’ and peace officers’ training whenever it relies exclusively on state certification requirements to ensure that its deputies are adequately trained.” Id. at 974. . To the extent that district courts outside of this district have interpreted Fifth Circuit precedent to provide the blanket immunity Defendants seek, the Court respectfully disagrees with those courts' interpretations. See Gonzales v. Westbrook, 118 F.Supp.2d 728, 737 (W.D.Tex.2000); Huong v. City of Port Arthur, 961 F.Supp. 1003, 1007 (E.D.Tex. 1997). This is particularly so in light of the Fifth Circuit recent clear statement that compliance with state training requirements is only \"a factor” in the inquiry. Zarnow, 614 F.3d at 171. . Plaintiffs also allege that Stafford is liable because it ratified Officer Estrada’s and Chief Krahn’s unconstitutional conduct after the fact. \"If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.” Praprotnik, 485 U.S. at 127, 108 S.Ct. 915 (plurality opinion). However, Plaintiffs fail to allege any ratification by a policymaker of the city beyond the conclusory statement, \"The City ratified Rrahn’s and Estrada’s conduct by approving their decisions and actions.” (Doc. No. 54.) The remainder of their allegations in the \"Ratification” section of the Amended Complaint, and their arguments in response to the motion to dismiss, simply refer to the allegations that there were unconstitutional city policies or failure to train their employees. Accordingly, Plaintiffs have not alleged sufficient facts to state a claim against Stafford based on ratification of unconstitutional conduct. . Defendants also moved to dismiss the claims against the" }, { "docid": "16719616", "title": "", "text": "955, 966 (N.D.Ohio 2001), citing Praprotnik, 485 U.S. at 127, 108 S.Ct. 915; Johnson v. City of Memphis, 2008 WL 111978, at *4, 2008 U.S. Dist. LEXIS 1199, at *11 (W.D.Tenn. Jan. 8, 2008). The Sixth Circuit has recognized such ratification claims. In Marchese v. Lucas, 758 F.2d 181 (6th Cir.1985), a prisoner threatened a law enforcement officer. Later, a sheriffs deputy allowed someone to enter a prisoner’s cell to violently beat him. A state district court judge ordered the sheriff to investigate the incident but the sheriff failed to do so. The Sixth Circuit held that: [t]he Sheriffs subsequent failure to order and direct an investigation which disclosed exactly who were the perpetrators of these brutal violations to the U.S. Constitutional and to administer censure and punishment served to confirm the existence of an unstated ‘policy’ of toleration of illegal brutality toward any county prisoner who threatened the life of a sheriffs deputy. Id. at 184 In Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir.1989), a sheriff failed to investigate a paraplegic inmate’s inadequate health care and failed to punish those responsible. There, the Sixth Circuit also found liability because the sheriff knew that “at least 14 other paraplegics had received similar deplorable treatment” without taking any action. Id. at 1248. Here, the City did conduct an investigation of the Officer Kovach incident, and he was disciplined for his actions. At the request of Chief Mandopoulos, Sergeant Cole commenced an investigation and summarized his detailed findings in a report submitted to Chief Mandopoulos approximately three weeks later. Because the City conducted an extensive investigation and suspended Officer Kovach for sixty days without pay, this case is clearly distinguishable from Márchese and Leach, where no investigation was conducted and no discipline was meted. Ms. Gill argues, in essence, that the investigation came too late, and the failure to immediately discipline Officer Kovach based solely on his Response to Resistance report is enough to constitute ratification, Furthermore, Ms. Gill argues that, had the media not obtained the video recording of the event, no formal investigation would have been launched." }, { "docid": "16719606", "title": "", "text": "be the moving force of the constitutional violation in order to establish municipal liability. Monell, 436 U.S. at 690, 98 S.Ct. 2018. Liability against a municipality is available pursuant to multiple theories. See id. at 660-61, 98 S.Ct. 2018 (an express municipal policy); City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (a “widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and well settled as to constitute a custom or usage’ with the force of law”); City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (a failure to act where the “inadequacy [of the existing practice is] so likely to result in the violation of constitutional rights, that the policymaker ... can reasonably be said to have been deliberately indifferent to the [plaintiffs rights]”); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1247 (6th Cir.1989) (a ratification of a municipal employee’s unconstitutional acts by failing to meaningfully investigate and punish allegations of unconstitutional conduct). Here, Ms. Gill claims that the City is liable because it ratified Officer Kovach’s actions, and espoused a policy of deliberate indifference to the constitutional rights of others by failing to properly train its officers. 1. Failure to Train First, Ms. Gill claims that the City failed to properly train its officers. The Supreme Court in Canton has explained: The issue ... is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent “city policy.” It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In" }, { "docid": "324314", "title": "", "text": "theories with regard to the acts of a policymaker: either Sgt. Robinson was acting as a policymaker when he gave orders to the officers on the scene and acquiesced in their conduct, or Chief Leach was acting as a policymaker when he ratified the officers’ acts by failing to discipline them. Whether a municipal official is acting as a policymaker is a question of state and local law. Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The plaintiffs argue that Sgt. Robinson, as the ranking officer on the scene, was acting as a policymaker for the Village and exercising discretion when he permitted the officers to arrest Mr. Parker and search Ms. Nichols’ property. However, hierarchy is not dispositive of final policymaking authority, nor is the mere exercise of discretion. Cornfield by Lewis v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1325 (7th Cir.1993). The defendants have produced the Village ordinances, which establish the authority of the police chief to make rules and regulations, and the plaintiffs have not come forward with any evidence that would indicate that Sgt. Robinson is a final policymaker for the Village. Indeed, case law indicates that a police sergeant is not a policymaker under state law. See Illinois v. Fullwiley, 304 Ill.App.3d 44, 237 Ill.Dec. 861, 710 N.E.2d 491, 495 (1999) (holding that police sergeant was supervisor but not “ ‘policy-making level’ official”); Ill v. Roland, 812 F.Supp. 855, 861 (N.D.Ill.1993) (holding that police sergeant is not invested with any final policymaking authority). The defendants admit that Chief Leach was invested with final policy-making authority for the Village, and the plaintiffs claim that he ratified the officers’ actions by failing to discipline them, If an authorized policymaker approves a subordinate’s decision and the basis for it, the policymaker’s ratification is chargeable to the municipality. Monfils v. Taylor, 165 F.3d 511, 517 (7th Cir.1998) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). But the undisputed evidence here shows that Chief Leach ordered an independent investigation" }, { "docid": "17424949", "title": "", "text": "Canton, 138 F.Supp.2d 955, 966 (N.D.Ohio 2001); see Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246-48 (6th Cir.1989); Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir.1985). Viewed in this light, evidence that a municipality inadequately investigated an alleged constitutional violation can be seen as evidence of a policy that would condone the conduct at issue. In Márchese, a prisoner who had threatened a police officer was twice beaten while in police custody. The sheriff failed either to investigate the incident or to punish the officers involved. The court initially noted that even though the sheriff was not present during the beatings, he was sued in his official capacity and, “in that capacity, he had a duty to both know and act.” Márchese, 758 F.2d at 188. The court concluded that the official policy of the sheriff and the county (1) did not require appropriate training or discipline of the police officers, and (2) would not engender either investigation or sanctions against officers when such an assault occurred. The court stated, “It is this latter official policy which we also regard as ratification of the illegal acts....” Id. In Leach, the court held that the Shelby County sheriff — both supervisor and final policymaker — “implicitly authorized, approved, or knowingly acquiesced in the action of the responsible jail personnel as shown by the fact that ... he failed subsequently to punish the responsible individuals.” Leach, 891 F.2d at 1246 (internal quotation marks omitted). The court went on to find the sheriffs failure to investigate an incident of mistreatment of a paraplegic prisoner or to punish the responsible parties to be persuasive evidence of a municipal policy of deliberate indifference to the needs of paraplegic prisoners at the Shelby County Jail. The court stated that the sheriff had, in effect, ratified the actions of the county employees responsible for the constitutional violation. In Wright, the plaintiff offered evidence that the investigation into an alleged excessive use of force was not designed to discover what actually happened. Most notably, the officer conducting the investigation never interviewed the emergency room doctor who" }, { "docid": "17424950", "title": "", "text": "latter official policy which we also regard as ratification of the illegal acts....” Id. In Leach, the court held that the Shelby County sheriff — both supervisor and final policymaker — “implicitly authorized, approved, or knowingly acquiesced in the action of the responsible jail personnel as shown by the fact that ... he failed subsequently to punish the responsible individuals.” Leach, 891 F.2d at 1246 (internal quotation marks omitted). The court went on to find the sheriffs failure to investigate an incident of mistreatment of a paraplegic prisoner or to punish the responsible parties to be persuasive evidence of a municipal policy of deliberate indifference to the needs of paraplegic prisoners at the Shelby County Jail. The court stated that the sheriff had, in effect, ratified the actions of the county employees responsible for the constitutional violation. In Wright, the plaintiff offered evidence that the investigation into an alleged excessive use of force was not designed to discover what actually happened. Most notably, the officer conducting the investigation never interviewed the emergency room doctor who treated the plaintiffs injuries. The court held that the plaintiff had established a municipal liability claim because he had shown that the investigation was so inadequate as to constitute a ratification of the officers’ alleged use of excessive force. Here, Plaintiff has adduced evidence that the City has a policy of dealing with citizen complaints in such a way as to virtually ensure that offending officers will not be disciplined for their misconduct. The City’s failure to discipline any officer based on Otero’s injury thus constitutes a ratification by the City of the unconstitutional conduct that caused that injury. According to the contract between the City and the Fraternal Order of Police, a citizen complaint must be received by the City within 60 days of the date of the alleged event giving rise to the complaint. If a complaint is received outside of that deadline, the complaint will be classified as unfounded. Exceptions to this rule are (1) if the allegations of conduct are criminal on their face; (2) if the allegations of conduct could" }, { "docid": "17252785", "title": "", "text": "this failure to investigate is tantamount to ratification of the searches thereby imposing liability on the municipality. (Id.) Plaintiffs base this theory on language from the Supreme Court’s decision in City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). In Praprotnik, a plurality of the Supreme Court held that municipal policy may be created by a policymaker’s ratification of a subordinate’s actions. See Praprotnik, 485 U.S. at 127, 108 S.Ct. 915. The Court further explained, however, that the creation of policy by a subordinate does not occur simply because a supervisor goes along with the discretionary decisions of his or her subordinate. Id. at 130, 108 S.Ct. 915. Rather, in order for a subordinate’s actions to be deemed municipal policy, one of two things must occur: either the subordinate must cast his discretionary decision in the form of a policy statement that is then expressly approved of by the supervising policymaker or the subordinate must have repeatedly made the same decision such that it had become a “custom or usage” of which his or her supervisor must have known and approved. Id.See also Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 998 n. 29 (11th Cir.1990). Plaintiffs’ reliance on Praprotnik is misplaced. This case stands for the proposition that a non-final policymaker’s decision may serve the basis for municipal liability if the actual policymaker approves the decision and the basis for it. In the instant case, the searches were concluded, and no after-the-fact approval or disapproval could change the fact that the searches had already occurred. Even if the school district had strongly admonished Morgan and Roberts for their roles in the search, the constitutional violation would not have been altered. The only other avenue available to plaintiffs to impose liability on the municipality for failing to investigate would be to show that the failure to investigate is so prevalent as to amount to a county policy. Plaintiffs have not offered any proof that the failure to investigate claims or failure to take disciplinary action against employees within the Clayton" }, { "docid": "23522326", "title": "", "text": "must show direct causation. See Piotrowski, 237 F.3d at 580. This means “there must be a direct causal link” between the policy and the violation. Id.; see also Johnson, 379 F.3d at 310 (quoting Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir.1992) (“must be more than a mere ‘but for’ ”)). Peterson acknowledges that there is no official written or otherwise specially articulated policy upon which he can rely. Nevertheless, he advances several theories of municipal liability. He alleges that the use of excessive force by Fort Worth Police Department officers is so common, and well known to the policymakers, that it constitutes a custom that fairly represents official policy. In addition, he alleges the City is also liable because it ratified the use of excessive force in this case and generally failed either to train or supervise its officers. B. Because we can quickly conclude that the City is not liable for any violation under the theories of ratification or failure to train or supervise, we address those arguments first. Peterson alleges the City is liable because Chief Mendoza ratified the officers’ conduct. He points out that Chief Mendoza determined after investigation that Officers Horner and Ballard’s conduct complied with the department’s policies. Peterson cites City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), which acknowledges that “[i]f the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.” Id. at 127, 108 S.Ct. 915. But our precedent has limited the theory of ratification to “extreme factual situations.” See Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir.1998). Under that precedent, we cannot say that this case presents an extreme factual situation. Compare Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir.1985) (finding ratification in case in which officers “poured” gunfire onto a truck and killed innocent occupant), with Snyder, 142 F.3d at 798 (refusing to find ratification in case in which officer shot fleeing suspect in the back). Moreover, we have also explained" }, { "docid": "12198", "title": "", "text": "with state training requirements is only \"a factor” in the inquiry. Zarnow, 614 F.3d at 171. . Plaintiffs also allege that Stafford is liable because it ratified Officer Estrada’s and Chief Krahn’s unconstitutional conduct after the fact. \"If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.” Praprotnik, 485 U.S. at 127, 108 S.Ct. 915 (plurality opinion). However, Plaintiffs fail to allege any ratification by a policymaker of the city beyond the conclusory statement, \"The City ratified Rrahn’s and Estrada’s conduct by approving their decisions and actions.” (Doc. No. 54.) The remainder of their allegations in the \"Ratification” section of the Amended Complaint, and their arguments in response to the motion to dismiss, simply refer to the allegations that there were unconstitutional city policies or failure to train their employees. Accordingly, Plaintiffs have not alleged sufficient facts to state a claim against Stafford based on ratification of unconstitutional conduct. . Defendants also moved to dismiss the claims against the individual defendants under the Texas \"election of remedies” provision because Plaintiffs have elected to sue the City of Stafford, see id. at § 101.106(a). However, Plaintiffs have clarified that they allege only state law violations by the city, so that portion of Defendants' motion is moot. . The federal cases cited by Defendants all concern whether the State of Texas, through the TTCA, has waived its sovereign immunity in federal court as well as state court. Sherwinski v. Peterson, 98 F.3d 849, 851-52 (5th Cir.1996) (state agency); United Carolina Bank v. Board of Regents of Stephen F. Austin State University, 665 F.2d 553, 559 (5th Cir.1982) (state university); O’Rourke v. United States, 298 F.Supp.2d 531, 536 (E.D.Tex. 2004) (state university). It is black-letter law that, \"municipalities, unlike States, do not enjoy a constitutionally protected immunity from suit.” Jinks v. Richland County, 538 U.S. 456, 466, 123 S.Ct. 1667, 155 L.Ed.2d 631 (2003). . By contrast, for example, the Texas Supreme Court has held that \"written information in the form of instructions and manuals is not" }, { "docid": "21615216", "title": "", "text": "it demoted him in retaliation for his run for alderman. A municipal agency such as the Board can be liable under § 1983 for violating a person’s civil rights through: (1) an express municipal policy; (2) a widespread practice constituting custom or usage; or (3) a constitutional injury caused or ratified by a person with final policymaking authority. Kujawski v. Board of Commissioners, 183 F.3d 734, 737 (7th Cir.1999); City of St. Louis v. Praprotnik, 485 U.S’. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (opinion of O’Connor, J.). However, liability requires more than the fact that a low level supervisor took some action that was not later reversed by a policymaker. Compare Praprotnik, 485 U.S. at 130, 108 S.Ct. 915. One way or another, the policy must be shown to be that of the municipality itself. See McMillian v. Monroe County, 520 U.S. 781, 784, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997); Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 468 (7th Cir.2001). In this case, the parties agree that final policymaking authority rested with Valias. See 105 ILCS 5/34-3.3. The district court concluded that the undisputed evidence showed that Valias neither caused nor ratified the decision to demote Simmons. This case differs somewhat from the typical ratification fact pattern. Normally, the plaintiff alleges that her immediate supervisor has unconstitutionally muzzled her free speech through a demotion or termination, and the defendants rely on the fact that no higher level individuals were aware of the unconstitutional basis of that job action. See Kujawski, 183 F.3d at 736; Praprotnik, 485 U.S. at 117, 108 S.Ct. 915. Here, in contrast, Simmons is indeed arguing that the higher level policymaker, Valias, had an unconstitutional motive for dismissing him. Therefore, if there is any evidence indicating that Valias played a role in Simmons’s demotion and acted unconstitutionally, a trial would be necessary to determine whether the Board was liable for his actions. The district court found that Simmons had produced no evidence that Valias played a role in the demotion, and that Gotsch alone made the decision. This conclusion," }, { "docid": "10808017", "title": "", "text": "evinces “deliberate indifference” to constitutional rights. Id. at 406, 109 S.Ct. 1197 (quoting City of Canton, 489 U.S. at 388, 109 S.Ct. 1197). However, on occasion, a municipal policy facially violates the Constitution. In such a case, the plaintiffs task in establishing a § 1983 claim is less cumbersome. Id. at 404—05, 109 S.Ct. 1197 (“Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward.”). In particular, the plaintiff need not establish the municipality’s deliberate indifference. Id. A municipal policy may facially violate constitutional rights in three ways. First, the policy may itself deprive a person of his constitutional rights. Owen v. Independence, 445 U.S. 622, 627-29, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (finding municipal liability based on city council’s censure and discharge of employee without due process). Second, a policy may direct a municipal employee to violate the Constitution. Pembaur v. Cincinnati, 475 U.S. 469, 485, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (finding municipal' liability when final policymaker directed deputies to forcibly enter physician’s office in violation of Fourth Amendment). Finally, a policy may ratify a municipal employee’s unconstitutional acts. City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (“If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because the decision is final”). Here, Wright bases his municipal liability claim on a theory of ratification. He says the City ratified Jackson and Vine-sky’s alleged use of excessive force by failing to meaningfully investigate them conduct. The United States Court of Appeals for the Sixth Circuit has twice found that a municipality ratifies its employees’ unconstitutional acts by failing to meaningfully investigate those acts. Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir. 1989); Marchese v. Lucas, 758 F.2d 181 (6th Cir.1985). Both cases involve facts remarkably similar to those alleged in this case. In Márchese, a county sheriff failed to investigate his deputies’ beating of an inmate" }, { "docid": "23328680", "title": "", "text": "for it.” Praprotnik, 485 U.S. at 127, 108 S.Ct. 915; see Gillette, 979 F.2d at 1348 (refusing to find ratification, because “[t]here is no evidence that the City manager made a deliberate choice to endorse the Fire Chiefs decision and the basis for it”). Accordingly, ratification requires, among other things, knowledge of the alleged constitutional violation. See Garrison v. Burke, 165 F.3d 565, 572 n. 6 (7th Cir.1999) (holding that the municipality was not liable under § 1983, because it had no knowledge of the alleged constitutional violations); Gattis v. Brice, 136 F.3d 724, 727 (11th Cir.1998) (stating a similar proposition). Christie provided no evidence, in conjunction with his summary judgment motion, that Kimura knew of Iopa’s actions before the criminal ease against him was dismissed (i.e., before the alleged constitutional violations ceased). That being so, Christie has not established a genuine issue of material fact as to the question whether Kimura ratified Iopa’s actions. 2. Anderson After Christie’s case was dismissed, but while Anderson’s case was still pending, both Plaintiffs filed this action against Ki-mura. Anderson alleged that Iopa had violated, and was continuing to violate, his constitutional rights. Filing the action thus provided Kimura with notice of Iopa’s alleged ongoing constitutional violations. See Link v. Wabash R.R. Co., 370 U.S. 626, 634, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (“[E]ach party is ... considered to have notice of all facts, notice of which can be charged upon the attorney.”) (citation and internal quotation marks omitted); Henry v. County of Shasta, 132 F.3d 512, 518 (9th Cir.1997) (“It is a reasonable inference—indeed, the only reasonable inference—that after Henry filed suit and successfully served process against the county, it knew about the alleged malfeasance of its employees at the jail.”), as amended, 137 F.3d 1372 (9th Cir.), cert. denied, — U.S. -, 119 S.Ct. 59, 142 L.Ed.2d 46 (1998). A policymaker’s knowledge of an unconstitutional act does not, by itself, constitute ratification. Instead, a plaintiff must prove that the policymaker approved of the subordinate’s act. For example, it is well-settled that a policymaker’s mere refusal to overrule a subordinate’s completed" } ]

[ { "docid": "17292454", "title": "", "text": "Ry. Co., L. R. 8 Ch. App. 942, affirmed by the House of Lords in L. R. 7 H. of L. 550, in 1875; Franklin Tel. Co. v. Harrison, 145 U. S. 459, 12 Sup. Ct. 900, 36 L. Ed. 776; Robson v. Mississippi Logging Co. (C. C.) 43 Fed. 364, affirmed by the Circuit Court of Appeals for the Eighth Circuit in 69 Fed. 773, 16 C. C. A. 400; and Western Union Tel. Co. v. Pennsylvania Co. (decided by the Circuit Court of Appeals for the Third Circuit) 129 Fed. 849, 64 C. C. A. 285, 68 L. R. A. 968. In the case cited from 5 De Gex & Sm. 138, two railroad companies had mutuallys agreed to grant each other running- privileges over their respective roads. There were no words in their contract fixing the duration of the agreement. The defendant contended that it was terminable by either party on notice to the other, and sought to avail itself of that privilege. But the Vice Chancellor held otherwise, and granted an injunction on a bill filed by the other party. In Llanery Ry. & Dock Co. v. London & N. W. Ry. Co., the complainant had agreed with the defendant, for a sufficient consideration and upon specified conditions, to grant to it the privilege of running trains over its road. As in the preceding case there was in terms no limitation or restriction in respect to the time during which the agreement should be operative. The complainant took the ground that it was terminable by it on giving notice, and proceeded accordingly by giving three months’ notice. The defendant, on the other hand, contended that it was a permanent and irrevocable contract, and res>r'\"d the contention of the Llanery Company. The controversy reached the Chancery Court upon a bill filed by the latter company to restrain tlie other from running its cars over the road of the Llanery Company and for a declaration that the contract had been terminated. The case was decided by the Vice Chancellor upon an indifferent question. But the parties by agreement" } ]

[ { "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": "195456", "title": "", "text": "discontinue the contract as to new coverages. As so modified the decree is Affirmed. . The policy provides, inter alia, that ‘'The company also reserves the right * * * to modify the premium rates in Tables A and B to be used in the calculation of premiums with respect to employees whose coverage hereunder commences five years or more after the date of this contract; provided that at no time between April 1, 1939 and March 31, 1944 shall premium rates be established which are more than 7%% greater than the original rates, at no lime between April 3, 1944 and March 31, 1949 shall premium rates lie established which are more than 30% greater than the original rates, at no time between April 1, 1949 and March 31, 1954 shall premium rates be established which are more than 12%% greater than the original rates, et cetera, the maximum permissible difference between the new rates and the original rates increasing by 2%% of the original rates for each five year period entered upon thereafter; and provided further that no table of premium rates shall be established which results in a greater total premium than the table of premium rates then being used by the Company in the new Group Annuity contracts which it is then issuing providing similar benefits for employees in the same premium rate classification.” RUSSELL, Circuit Judge (dissenting). I am unable to join my colleagues in directing modification of the judgment of the trial court which held that twenty-five years was “a reasonable time” during which the insurance contract, which expressed no term, should remain operative. Certainly Aetna Life Insurance Company is not entitled to complain of this period under all of the circumstances of the case. Generally, where the parties to a contract fail to specify a definite term for its continuance, with the result that the judicial process must be resorted to in order to determine a “reasonable time” which should elapse before it is terminated, the primary effort of the courts is to determine the time which, as reasonable men, the parties to" }, { "docid": "195449", "title": "", "text": "women, could apply for, and Aetna would issue to them, annuity policies maturing at stated ages, upon the payment by Freeport of designated premiums, provided the employees remained in the employment of Freeport, or its affiliates, until their normal retirement age. The contract obligates Aetna to cover every qualified employee who makes application to the employer (not to Aetna), and for whom the required premium is paid. Coverage becomes effective as to each such employee when Freeport gives notice to Aetna that an application therefor has been made by the employee to the employer. Thus, coverage is virtually automatic upon the application of a qualified employee. Aetna is not authorized to reject any such application, so long as the employee is eligible under the terms of the master contract. Premiums are paid annually by Freeport, which partially reimburses itself by deductions from the pay of the participating employees, both employer and employee bearing a portion of the cost. Aetna reserved the right to modify the premium rates from time to time after the first five years of operation of the policy, by increasing the rates by not more than 71/2% of the original rate for the period of 1939-1944, and further increases of not more than 21/2% for each additional five year period. See note 1, post. Aetna exercised these rights at the expiration of each five year interval. The contract remained in force without interruption from April 1, 1934 until November 23, 1949, about 151/2 years, when Aetna notified Freeport that after January 1, 1950, no new coverages would be issued under the contract. This amounted to a cancellation of the contract as to new coverages, but did not undertake to affect or impair the rights of employees already covered. It was this notice which precipitated this controversy. The contract is unambiguous, except that it does not specify how long it shall remain in effect. The absence of such a clause is the basis of this suit. Freeport contends that the contract remains in effect perpetually, so long as premiums are paid. Aetna claims that the contract is terminable" }, { "docid": "10629508", "title": "", "text": "terms of a contract. In several of the cited cases there were stipulations that one party would furnish or sell materials and the other would pay for or buy them; and the question was what quantity was to be so furnished or purchased. Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85, 43 N.E. 774, 31 L.R.A. 529; Feuchtwanger v. Manitowoc Malting Co., 8 Cir., 187 F. 713; Dark Tobacco Growers’ Coop. Ass’n v. Mason, 150 Tenn. 228, 263 S.W. 60; Rozier v. St. Louis & S. F. R. Co., 147 Mo.App. 290, 126 S.W. 532. In the instant case, we have no mutual promises. In Mississippi River Logging Co. v. Robson, 8 Cir., 69 F. 773, it was held that where a logging company agreed to drive logs for a specified consideration, the fact that the contract did not show that the promisee gave a consideration for the promise, did not render the contract void for mutuality inasmuch as it appeared that previous to the logging company’s agreement, plaintiff had executed a release of various claims he had against it, and that such release could be implied as a consideration for the logging company’s agreement. In Butler v. Thomson, 92 U. S. 412, 23 L.Ed. 684, the question was whether a memorandum of sale signed by agents of a purchaser and a seller, bound the parties. In Frierson v. International Agricultural Corp., 24 Tenn.App. 616, 148 S.W.2d 27, where a party paid a certain sum for the privilege of holding certain mining property, with rights to mine it or not, for a period of thirty -years, suit was filed to cancel the lease on the ground that defendant had failed to mine the property and failed to pay royalties. The Court of Appeals of Tennessee affirmed dismissal of the bill, holding that defendant had paid for its rights to retain the leased piemises without obligation to exploit or develop them within the period above mentioned. The application of these cases is not controlling in the present controversy. In this case, as far as can be ascertained from the" }, { "docid": "17292453", "title": "", "text": "go on for many years. And it may be that the railway company was anticipating the disposition of what it did not want to use to others, and make profit in its transportation, and, perhaps, in the resale. It is well known that at that time such a course of business was not uncommon.’ But a more conclusive answer is that-it should have been considered by the parties when they made their agreement whether it would impose too great a hardship upon them. The decisions upon the question we are now dealing with are not very numerous, but some of them are of high authority, and, if not controlling, are very persuasive. Some of which are cited in support of the contention for the plaintiff are Great Northern Ry. Co. v. Manchester, Sheffield, etc., Ry. Co., 5 De Gex & Sm. 138, decided by Vice Chancellor Parker in 1851, and said by Lord Justice James to have been the law of England since that time; Llanery Ry. & Dock Co. v. London & N. W. Ry. Co., L. R. 8 Ch. App. 942, affirmed by the House of Lords in L. R. 7 H. of L. 550, in 1875; Franklin Tel. Co. v. Harrison, 145 U. S. 459, 12 Sup. Ct. 900, 36 L. Ed. 776; Robson v. Mississippi Logging Co. (C. C.) 43 Fed. 364, affirmed by the Circuit Court of Appeals for the Eighth Circuit in 69 Fed. 773, 16 C. C. A. 400; and Western Union Tel. Co. v. Pennsylvania Co. (decided by the Circuit Court of Appeals for the Third Circuit) 129 Fed. 849, 64 C. C. A. 285, 68 L. R. A. 968. In the case cited from 5 De Gex & Sm. 138, two railroad companies had mutuallys agreed to grant each other running- privileges over their respective roads. There were no words in their contract fixing the duration of the agreement. The defendant contended that it was terminable by either party on notice to the other, and sought to avail itself of that privilege. But the Vice Chancellor held otherwise, and granted an" }, { "docid": "18739376", "title": "", "text": "protected, the requirements of the statute are satisfied. Adequate protection is all that § 461(11) requires. If it is there, the debtor can do almost anything. If it is not, he can do nothing. 9 B.R. at 858. In another recent farm reorganization decision in which the debtor sought a 7 year extension followed by a balloon payment, the court stated: [W]here a dissenting claimant is receiving payment in full over a reasonable period of time, with an appropriate interest or discount factor being paid, that creditor is receiving all that the law requires, that is — full payment over a reasonable period of time.... In Re Hollanger, 15 B.R. 35, 47, 8 BCD 365, 5 CBC2d 386 (Bkrtcy.W.D.La.1981). Finally, in Wachovia Bank & Trust Co. v. Harris (In Re Cabana Club Apts., Inc.), 455 F.2d 841 (4th Cir.1972), a construction loan was made by Wachovia Bank & Trust to the debtor. The loan on its face was for a term of 20 years, but it was contemplated that after construction was completed, the loan would be assigned to Aetna Life Insurance Co. Aetna would accept the assignment only if the debtor could offer the title to real estate under construction free of any liens. Wachovia’s subsidiary was a title company that refused to insure marketable title to the debtor’s real estate apparently based on an incorrect interpretation of North Carolina law. The court ruled that even though the 20 year term may have been in violation of Wachovia’s lending policies, nevertheless the debtor’s plan provided the same term as Wachovia’s construction loan. Furthermore, the Court believed the plan was confirmable because Wachovia initially ran the risk that Aetna would not necessarily accept the loan, and because of Wachovia’s own responsibility in not insuring the title. The Court believes that § 1129 does not per se prohibit long term payouts. If the mathematical requirements of § 1129(b) (2)(A)(i)(II) are satisfied, if the creditor is adequately protected under the plan, pursuant to the general fair and equitable requirement of § 1129(b)(2), and if the debtors can prove they can make payments" }, { "docid": "17292458", "title": "", "text": "in the case. If it had such right, the plaintiffs could not maintain their case. The court, by Mr. Justice Piarían, among other things touching this point, said: “If it was intended that Harrison Bros. & Co., having relinquished their valuable contract with the Insulated Lines Telegraph Company and put tip the wire at their own expense, should become, after 10 years, only tenants from year to year of tlie telegraph company, that intention, it seems to the court, would have been distinctly averred.” The court accordingly held that the contract was intended to continue permanently, and that the plaintiffs were entitled to the relief prayed. It was so held, notwithstanding the inconvenience which might result to the telegraph company. In the case of Robson v. Mississippi Logging Co., the contract was between the owner of large tracts of land on branches of the Mississippi river, the Chippewa and Flambeau rivers, wherefrom he proposed to take the timber down the branches to the Mississippi, and there .equip it for further transportation. To do this would require several years. The Logging Company agreed to do what was required. By the contract rates and terms and the annual payment of the amount due for each season’s business were agreed upon. The Logging Company continued to perform its contract for seven years, and then, insisting- that it had the right to terminate the contract at will, gave notice of its purpose. Robson thereupon brought an action for damages. To a petition alleging the contract and its breach, the defendant demurred because it appeared therefrom that the contract “was silent as to the time during which it should remain in force, and the defendant had therefore the right to terminate it at its pleasure, or upon giving reasonable notice.” The demurrer was overruled upon an opinion filed by Judge Shiras, in which he discussed the question at some length. Subsequently the case was taken by writ of error to' the Circuit Court of Appeals for the Eighth Circuit upon findings of fact and law by the trial judge, whereon a judgment had been entered" }, { "docid": "195452", "title": "", "text": "in the contract. Such an option is not terminable at will by the insurer. Since no1 term for the option is provided in the contract, it is terminable after a reasonable time. Restatement, Law of Contracts, §§ 24, 47; Williston on Contracts, Revised Edition, Vol. 1, §§ 38, 61; Holt v. St. Louis Union Trust Co. [4 Cir., 52 F.2d 1068]; Bach v. Friden Calculating Mach. Co., 6 Cir., 155 F.2d 361; Cohen & Sons, Inc. v. M. Lurie Woolen Co., Inc., 232 N.Y. 112, 133 N.E. 370; Pope v. Terre Haute Car & Mfg. Co., 107 N.Y. 61, 13 N.E. 592. * * * One effect of Freeport’s performance under the contract is to give Freeport an option to purchase for its new employees annuities pursuant to the contract. The consideration supporting the contract also supports tile option which is one of the terms of the contract.” Of course, the contract would “discontinue” at any time Freeport ceased paying the required premiums. We agree with the foregoing conclusions of the district judge, as well as his conclusion that the contract should be interpreted according to the laws of New York, where it was delivered to Freeport and became effective, after having been submitted to, and approved by, the Superintendent of Insurance of that state. N. Y. Life Ins. Co. v. Chapman, 8 Cir., 132 F.2d 688; Mutual Benefit Health & Acc. Ass’n v. Kennedy, 5 Cir., 140 F.2d 24; Order of U. C. T. v. Meinsen, 8 Cir., 131 F.2d 176; 11 Am.Jur. 386(100). Compare Boseman v. Connecticut Gen. Life Ins. Co., 301 U.S. 196, 57 S.Ct. 686, 81 L.Ed. 1036; Transit Bus Sales v. Kalamazoo Coaches, 6 Cir., 145 F.2d 804; Pasquel v. Owen, 8 Cir., 186 F.2d 263; Newspaper Readers Service v. Canousburg Pottery Co., 3 Cir., 146 F.2d 963; Cockburn v. O’Meara, 5 Cir., 141 F.2d 779. We also agree with the district judge that the contract is not illegally discriminatory under sec. 209 oí the New York Insurance Law, McK.Consol.Laws, c. 28, which prohibits any insurance company doing business in that state from making “any" }, { "docid": "7982776", "title": "", "text": "convening to a Direct-Pay Subscription Agreement. App. at 809 (emphasis added). The Blue Cross/Blue Shield contract provides: 1. If coverage of a Subscriber is terminated solely because of leaving the employ of the Group while this Contract is in effect, he or she may apply directly within 30 days of the termination to Blue Cross for the applicable Contract issued to direct payment Subscribers under its regulations and at its established charges. App. at 781 (emphasis added). This is not a case like hanger v. Monarch Life Insurance Co., 879 F.2d 75 (3d Cir.1989), where ambiguous terms of an agreement are defined by the parties’ course of conduct in carrying it out. As already stated, some abstract ambiguity about the status of a disabled person who has some likelihood of recovery as an employee participant in a benefit plan is not material to Mrs. Smith’s case. Her disability was total and permanent from its onset. Section 502(a)(3) states a court may use equitable principles to “enforce” the provisions of a plan. Here, the use of equitable estoppel to preclude the Hospital from denying Mrs. Smith’s continued employment would amend, rather than enforce, the provision of the old Blue Cross/Blue Shield benefit plan that required a participant who ceased to be in “the employ of the group” to convert to direct-pay within thirty days of termination “due to disability.” Cf. Rodrigue v. Western & Southern Life Ins. Co., 948 F.2d 969, 971 (5th Cir.1991) (rejecting equitable estoppel based on oral representations because express terms of plan control); Cummings v. Briggs & Stratton Retirement Plan, 797 F.2d 383, 389 (7th Cir.), cert. denied, 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 703 (1986); see also Straub v. Western Union Tel. Co., 851 F.2d 1262 (10th Cir.1988); Nachwalter v. Christie, 805 F.2d 956 (11th Cir.1986). Even if equitable estoppel were available to modify the terms of this plan, at trial the Smiths would have the burden of showing all the necessary elements of an estoppel. Thus, the Hospital could not be estopped from denying 'Mrs. Smith’s continued employment unless she has shown that" }, { "docid": "3565588", "title": "", "text": "CUMMINGS, Circuit Judge. This is an appeal from summary judgment granted in favor of the defendant Aetna Life Insurance Company (“Aetna”) in an action governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”). The Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. A grant of summary judgment is reviewed de novo, Russo v. Health, Welfare & Pension Fund, 984 F.2d 762, 766 (7th Cir.1993), to be affirmed “only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law,” Edwards v. Massachusetts Mutual Life Ins. Co., 936 F.2d 289, 291 (7th Cir.1991), after viewing the record in the light most favorable to the nonmoving party, Russo, 984 F.2d at 765. Summary judgment is appropriate in this case, but not for the reasons advanced by the district court in its unpublished order. Because this Court reachés the same conclusion as the court below, although by a different route, the decision is affirmed. Background Plaintiffs late husband, G.B. Thomason, was insured under a group policy issued by defendant Aetna to his employer, Burkhart Foam, Inc. The policy included life insurance and disability coverage. Under the written terms of the policy, an employee would be entitled to “extended insurance” (that is, to life insurance coverage that would continue “without payment of further premiums”) if, among other things, “before attaining the age of sixty years ... [the employee] became totally and permanently disabled.” The parties agree that the group policy is an employee benefit plan governed by ERISA. On or about November 11, 1986, less than two months after his sixtieth birthday, Mr. Thomason suffered a stroke. In June 1986 he thereby became entitled to and subsequently received long-term disability benefits from Aetna. Because the stroke occurred after Mr. Thomason had turned sixty, however, he did not qualify under the written terms of the plan for extended life insurance free of premium payments. He did have the option of continuing his coverage by converting the group life insurance policy to an individual policy, but" }, { "docid": "7384034", "title": "", "text": "is rather an action for breach of an independent pension plan for the employees of the Western Union Telegraph Company. Article 54(a) of the collective bargaining agreements expressly provides that the company will not during the life of the bargaining agreement or contract abandon or modify its existing benefit and pension plan, except pursuant to mutual agreement. The complaint avers that the union has never agreed to change the plan in accordance with the contentions of defendant. The pension and benefit plan was in effect and operation at the time the collective bargaining agreements were executed, and these agreements expressly refer to the plan. It would be quite unreasonable in the circumstances which have been stated to assume that the appellant did not consider the benefit and pension plan as a part of its collective bargaining agreement. Where a contract makes reference to another agreement between the same parties in such fashion as to clearly import incorporation by reference, the contract and the pre-existing document should be read together and considered as one binding agreement or contract. Cf. Crowell v. Gould, 68 App.D.C. 297, 96 F.2d 569; Layne-Bowler Chicago Co. v. City of Glenwood, 8 Cir., 34 F.2d 889; Western Union Telegraph Co. v. Louisville & N. R. Co., 5 Cir., 238 F. 26. In the circumstances alleged in the complaint, it was entirely unnecessary that the benefit and pension plan be physically annexed to the collective bargaining agreements to make it an essential part thereof. The order of dismissal entered by the district court is reversed; the costs of this appeal are taxed against appellee; and the cause is remanded to the district court for trial on the merits." }, { "docid": "195451", "title": "", "text": "at will by either party, insofar as it remains executory, that is, as to future coverages, but concedes that the rights of employees already covered can not be impaired. The district judge accepted neither contention, but held that the contract is terminable by Aetna upon notice, after a reasonable time, which he determined to be 25 years after its inception, which would be April 1, 1959, thus leaving a further effective period of approximately 6yz years from the date of the decree below. 107 F.Supp. 508, 513. Both parties appeal from those portions of the decree adverse to them. In reaching his conclusions as to the interpretation and effect of the contract, the district judge thus correctly stated the law: “This employees’ group annuity policy is a unilateral contract, an exchange of a promise for an act, a situation in which the insurer, in consideration of the annual payment of the premium hy the employer, gives the employer, among other things, a continuing option to purchase annuities for its new employees at the price fixed in the contract. Such an option is not terminable at will by the insurer. Since no1 term for the option is provided in the contract, it is terminable after a reasonable time. Restatement, Law of Contracts, §§ 24, 47; Williston on Contracts, Revised Edition, Vol. 1, §§ 38, 61; Holt v. St. Louis Union Trust Co. [4 Cir., 52 F.2d 1068]; Bach v. Friden Calculating Mach. Co., 6 Cir., 155 F.2d 361; Cohen & Sons, Inc. v. M. Lurie Woolen Co., Inc., 232 N.Y. 112, 133 N.E. 370; Pope v. Terre Haute Car & Mfg. Co., 107 N.Y. 61, 13 N.E. 592. * * * One effect of Freeport’s performance under the contract is to give Freeport an option to purchase for its new employees annuities pursuant to the contract. The consideration supporting the contract also supports tile option which is one of the terms of the contract.” Of course, the contract would “discontinue” at any time Freeport ceased paying the required premiums. We agree with the foregoing conclusions of the district judge, as well" }, { "docid": "195448", "title": "", "text": "STRUM, Circuit Judge. This action was instituted by Freeport Sulphur Company to determine, by declaratory judgment, the period of duration of the contract hereinafter described, and for incidental relief. 28 U.S.C.A. §§ 2201, 2202. Freeport is engaged in the mining of sulphur in Louisiana and Texas. In 1933, it desired to institute a pension plan for the benefit of its then and future employees, and those of its affiliated companies, by which annuities would be provided for said employees when they reached the age of retirement. To this end, beginning in August, 1933, Freeport commenced negotiations with the defendant Aetna Life Insurance Company, and another company, seeking to formulate a satisfactory group annuity plan. After spirited competition, the business was awarded to Aetna, which issued a group annuity contract dated April 1, 1934. Under the policy, employees who had been in the employ of Freeport or its affiliates, for one year or more, and new employees after one year of employment, who had not attained the age of 65 years for men, 60 years for women, could apply for, and Aetna would issue to them, annuity policies maturing at stated ages, upon the payment by Freeport of designated premiums, provided the employees remained in the employment of Freeport, or its affiliates, until their normal retirement age. The contract obligates Aetna to cover every qualified employee who makes application to the employer (not to Aetna), and for whom the required premium is paid. Coverage becomes effective as to each such employee when Freeport gives notice to Aetna that an application therefor has been made by the employee to the employer. Thus, coverage is virtually automatic upon the application of a qualified employee. Aetna is not authorized to reject any such application, so long as the employee is eligible under the terms of the master contract. Premiums are paid annually by Freeport, which partially reimburses itself by deductions from the pay of the participating employees, both employer and employee bearing a portion of the cost. Aetna reserved the right to modify the premium rates from time to time after the first five" }, { "docid": "14752964", "title": "", "text": "one party is unreasonable in light of the contract’s plain language, the contract is not ambiguous, and the court may not use extrinsic evidence to vary the terms of the contract. See Orkin Exterminating Co., Inc. v. F.T.C., 849 F.2d 1354, 1362 (11th Cir.1988). In determining whether a contract is ambiguous, we must first look at the words on the face of the contract. See Rose v. M/V “Gulf Stream Falcon”, 186 F.3d 1345, 1350 (11th Cir.1999). The Agreed Judgment provides that CRA, as ICC’s successor, “shall provide the members of the Class ... in accordance with the fully executed Settlement Agreement, the same health insurance benefits ICC is providing members of the Class today under the policy issued by Travelers Insurance Company; these benefits will be provided by ICC for the lives of the Class members.” (emphasis added). The parties agree that this language pro- Mbits CRA from amending the CRA Plan in a way that reduces or modifies the benefits the Transway retirees were receiving under the ICC Plan, but disagree over whether the challenged contributions have the effect of reducing or modifying those benefits. We find that they do. It is axiomatic that a plan without a contribution requirement is more advantageous to the participant than a plan with a contribution requirement. This is because the overall total economic value of the benefits received under a plan decreases as the cost of those benefit increases. Because the level or existence of an employee contribution thus directly affects the value of the benefits received, we hold that not having to pay a contribution is a benefit of a health care plan. See Magliulo v. Metropolitan Life Ins. Co., 208 F.R.D. 55, 57 (S.D.N.Y.2002) (finding that a higher monthly premium charge effects a reduction in benefits received under an insurance plan because “the benefit due from [an] insurance plan is to receive health coverage for a certain price”). The conclusion we reach today is in accord with both the ordinary meaning of a “benefit” and our decision in Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443" }, { "docid": "17292459", "title": "", "text": "require several years. The Logging Company agreed to do what was required. By the contract rates and terms and the annual payment of the amount due for each season’s business were agreed upon. The Logging Company continued to perform its contract for seven years, and then, insisting- that it had the right to terminate the contract at will, gave notice of its purpose. Robson thereupon brought an action for damages. To a petition alleging the contract and its breach, the defendant demurred because it appeared therefrom that the contract “was silent as to the time during which it should remain in force, and the defendant had therefore the right to terminate it at its pleasure, or upon giving reasonable notice.” The demurrer was overruled upon an opinion filed by Judge Shiras, in which he discussed the question at some length. Subsequently the case was taken by writ of error to' the Circuit Court of Appeals for the Eighth Circuit upon findings of fact and law by the trial judge, whereon a judgment had been entered for the plaintiff. The Court of Appeals affirmed the ruling of the lower court. In Western Union Tel. Co. v. Pennsylvania Co. this subject was much, discussed in an able opinion by Judge Gray, speaking for the court, upon a contract whereby the Pennsylvania Company agreed to furnish and set upon its line telegraph poles with arms, and the telegraph company was to furnish and string wire thereon for the joint use of the two companies. It was held by the Circuit Court of Appeals that, as no time during which the contract was to be operative was specified, it was not terminable at the will of either party, and the judgment of the court below, which refused an injunction against the Pennsylvania Company restraining it from violating the contract, was reversed. Several federal Circuit Court decisions are cited by counsel for defendant in support, of their construction of .the contract, but they seem to us to be not entirely in harmony with the decision of the Supreme Court of'the United States in the case" }, { "docid": "8998334", "title": "", "text": "explicitly directed to retirees stated: The Company will continue to reimburse the cost of Medicare premiums, including any subsequent increase in premiums, for those eligible, active or retired including their spouses as long as the Medicare benefits are coordinated with the Company group insurance plan. An employee who is eligible to retire under the terms of the disability retirement pension shall not be required to retire until he has exhausted his weekly accident and sickness disability benefits (52 weeks). There was no provision stating that the Plan then existing would “continue.” The record does not reflect that benefits were not disbursed or received between 1971 and 1973. The Basic Agreement further provided that upon ratification by the union’s locals, the agreement would ... become effective and remain in full force and effect and be binding upon the parties hereto from May 1, 1971 to and including April 30, 1973, and it shall continue in full force and effect thereafter from year to year until either party on or before March 1, of any year, beginning March 1,1973, gives written notice to the other party of its desire or intention either to alter or modify or to terminate the same. If such notice is given, the parties hereto shall begin negotiations not later than March 31 in such year and this Agreement shall continue in full force and effect until completion and signing of a new agreement, provided, however, that after such negotiations have continued without reaching an Agreement until May 1 in any year, then either party may terminate this Agreement, at any time thereafter upon notice. 32. In the May 1,1971, Plan booklet the “purpose” section explicitly stated that the “benefits and provisions of the group insurance plan in effect prior to the [listed] dates shall continue. This booklet explains the plan on and after the [listed] dates.” Booklet for May 1, 1971, Plan at 3. For retirement benefits, the 1971 Plan booklet explained: Upon your retirement with the consent of the company, on or after May 1, 1971, you may continue: 1. $4,000 of your group life insurance," }, { "docid": "4969631", "title": "", "text": "that this case does not involve the retirees vested interest in a pension. The concern over the lack of employee protection in retirement plans prompted Congress to enact the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. in 1974. The statutory vesting requirements contained in ERISA, however, apply only to pension plans and not to health and life insurance benefits. 29 U.S.C. § 1051(1). The Court in Turner, supra, recognized the distinction between pension plans and welfare benefits in terms of the employers obligation as follows: “Pensions are paid from an actuarily predetermined fund and are guaranteed for life. Health and welfare benefits are negotiated periodically and are paid from a fund consisting of employer contributions and last only the life of the Collective Bargaining Agreement.” The Courts have also recognized the trend of welfare plans toward the inclusion of retirees. Blassie v. Kroger Co., 345 F.2d 58 (8th Cir. 1965). An employer’s agreement to include retirees under group health and life insurance policies which cover an employer’s present employees, and even to pay the premiums for such retirees, however, is a substantially different financial undertaking than the creation of a pension plan or a promise to provide insurance benefits to retirees for life irrespective of the existence of an existing group policy. In this regard, the Court in Lee National, supra, stated: “The intent to terminate as to all employees, including retirees, is fortified by the undisputed fact that group insurance, which rests upon the insurability of the entire group, would be unobtainable, except possibly at prohibitive rates, for a group limited to retirees, who are for the most part over sixty-five (65) years of age.” The Court understands that many of the retirees in this case may have relied upon the defendant’s provision of these insurance benefits and contemplated their continuation for the remainder of their lives. The Court also notes that they had no part in the Union’s decision to strike in September of 1975. The fact, however, is undisputed that these benefits were only provided under Collective Bargaining Agreements with specific termination" }, { "docid": "195454", "title": "", "text": "unfair discrimination between individuals of the same class” in the purchase of life insurance or annuity contracts. See also Louisiana Statutes Annotated Rev.Stat. 1950, Title 22, secs. 652, 1214. Tile district judge also correctly held that the contract was not void for lack of mutuality. The doctrine of mutuality is inapplicable here. It should he borne in mind that because of the distinctive characteristics which inhere in insurance contracts of this nature, cases relating to other types of contracts are usually inapposite upon the question of mutuality. We differ with the district judge only as to what is a “reasonable time” for the operation of the contract. We think 25 years is too loug. Since April 1, 1934, economic conditions have radically changed, interest rates have sharply declined, and life expectancy has substantially lengthened. All these things enter into the rates to be charged for such a policy as this. In reserving the right to modify the premium rates on this policy, however, Aetna specifically provided for increases in rates through March 31, 1954, indicating that Aetna itself contemplated that the contract would remain in effect at least until that date. In the absence of a specific provision as to duration, which Freeport could have insisted upon, and in view of substantially changed conditions already referred to, we regard 20 years as a reasonable period of duration, after which Aetna is entitled to discontinue new coverages. Compare Texas & P. Ry. Co. v. City of Marshall, 136 U.S. 393, 10 S.Ct. 846, 34 L.Ed. 385. Perpetual contracts, though sometimes sanctioned, are not favored in the law. A construction of a contract conferring a right in perpetuity will be avoided unless compelled by the unequivocal language of the contract. Holt v. St. Louis Trust Co., 4 Cir., 52 F.2d 1068; Town of Readsboro v. Hoosac Tunnel Co., 2 Cir., 6 F.2d 733. Of course, existing coverages as of March 31, 1954, are not affected, so long as premiums are paid. Accordingly, the decree appealed from is modified so as to designate April 1, 1954, as the date upon which Aetna may" }, { "docid": "195455", "title": "", "text": "that Aetna itself contemplated that the contract would remain in effect at least until that date. In the absence of a specific provision as to duration, which Freeport could have insisted upon, and in view of substantially changed conditions already referred to, we regard 20 years as a reasonable period of duration, after which Aetna is entitled to discontinue new coverages. Compare Texas & P. Ry. Co. v. City of Marshall, 136 U.S. 393, 10 S.Ct. 846, 34 L.Ed. 385. Perpetual contracts, though sometimes sanctioned, are not favored in the law. A construction of a contract conferring a right in perpetuity will be avoided unless compelled by the unequivocal language of the contract. Holt v. St. Louis Trust Co., 4 Cir., 52 F.2d 1068; Town of Readsboro v. Hoosac Tunnel Co., 2 Cir., 6 F.2d 733. Of course, existing coverages as of March 31, 1954, are not affected, so long as premiums are paid. Accordingly, the decree appealed from is modified so as to designate April 1, 1954, as the date upon which Aetna may discontinue the contract as to new coverages. As so modified the decree is Affirmed. . The policy provides, inter alia, that ‘'The company also reserves the right * * * to modify the premium rates in Tables A and B to be used in the calculation of premiums with respect to employees whose coverage hereunder commences five years or more after the date of this contract; provided that at no time between April 1, 1939 and March 31, 1944 shall premium rates be established which are more than 7%% greater than the original rates, at no lime between April 3, 1944 and March 31, 1949 shall premium rates lie established which are more than 30% greater than the original rates, at no time between April 1, 1949 and March 31, 1954 shall premium rates be established which are more than 12%% greater than the original rates, et cetera, the maximum permissible difference between the new rates and the original rates increasing by 2%% of the original rates for each five year period entered upon thereafter;" }, { "docid": "195450", "title": "", "text": "years of operation of the policy, by increasing the rates by not more than 71/2% of the original rate for the period of 1939-1944, and further increases of not more than 21/2% for each additional five year period. See note 1, post. Aetna exercised these rights at the expiration of each five year interval. The contract remained in force without interruption from April 1, 1934 until November 23, 1949, about 151/2 years, when Aetna notified Freeport that after January 1, 1950, no new coverages would be issued under the contract. This amounted to a cancellation of the contract as to new coverages, but did not undertake to affect or impair the rights of employees already covered. It was this notice which precipitated this controversy. The contract is unambiguous, except that it does not specify how long it shall remain in effect. The absence of such a clause is the basis of this suit. Freeport contends that the contract remains in effect perpetually, so long as premiums are paid. Aetna claims that the contract is terminable at will by either party, insofar as it remains executory, that is, as to future coverages, but concedes that the rights of employees already covered can not be impaired. The district judge accepted neither contention, but held that the contract is terminable by Aetna upon notice, after a reasonable time, which he determined to be 25 years after its inception, which would be April 1, 1959, thus leaving a further effective period of approximately 6yz years from the date of the decree below. 107 F.Supp. 508, 513. Both parties appeal from those portions of the decree adverse to them. In reaching his conclusions as to the interpretation and effect of the contract, the district judge thus correctly stated the law: “This employees’ group annuity policy is a unilateral contract, an exchange of a promise for an act, a situation in which the insurer, in consideration of the annual payment of the premium hy the employer, gives the employer, among other things, a continuing option to purchase annuities for its new employees at the price fixed" } ]

[ { "docid": "10195738", "title": "", "text": "effective reorganization can include a liquidation.” Keller, at p. 476. See also 11 U.S.C. § 1123(b)(4). A plan of liquidation is allowed in a Chapter 11 bankruptcy so long there is not a continuing loss to the estate. In re Keller, at p. 476; In re Koopmans, 22 B.R. 395, 403 (Bkrptcy.Utah 1982). The Court disagrees with the decision of the Fourth Circuit in Riggs Nat. Bank of Washington, D.C. v. Perry, 729 F.2d 982 (4th Cir.1984) in which the court concluded, “In cases where the single asset of the debtor is real property, the court shall grant relief from the stay if the debt- or has no equity in the collateral, thereby allowing the creditor to proceed with his foreclosure.” (Emphasis added). S.Rep. No. 989, 95th Cong., 1st Sess. 5, reprinted in 1978 U.S. Code Cong. & Ad News, 5787, 5791. Riggs, 729 F.2d at 985. To follow the dictum in Riggs would not be in compliance with the purpose of the Bankruptcy Code which is to favor reorganization whenever realistically feasible. The Debt- or-in-Possession is considering the sale of condominiums in the building such that a reorganization could be possible and allowing the completion of a foreclosure would almost certainly eliminate any possibility of reorganization. Property is necessary for an effective reorganization whenever it is necessary either in the operation of the business or in a plan, to further the interests of the estate for rehabilitation or liquidation. In re Keller, at p. 477; In re Koopmans, 22 B.R. 395, 407 (Bkrptcy.Utah 1982). In the instant case the Dubuque Building is the major asset of the Debtor-in-Possession. The only other assets owned by the Debtor-in-Possession include two computers as well as other equipment necessary to run an office building. Given that the Dubuque Building is the sole major asset of the Debtor-in-Possession, this Court concludes that the Debtor-in-Possession has proven that the Dubuque Building is essential to an effective reorganization as required by 11 U.S.C. § 362(d)(2)(B). Therefore, this Court concludes that the automatic stay imposed by 11 U.S.C. § 362(a) cannot be lifted on the basis of" } ]

[ { "docid": "2179737", "title": "", "text": "must be a showing that the subject property is not necessary to an effective reorganization before the stay may be lifted. The July 15,1983 affidavit of debtor Carolyn Ann Faires in opposition to the motion for relief from stay states that the affiant was “making every effort to sell the properties” for the benefit of creditors. Ms. Hanson testified to the same effect at trial. Thus it is certainly not immediately apparent that the subject properties are “necessary to an effective reorganization.” However, as noted by the debtors, the term “reorganization” as used in § 362(d)(2)(B) has been held by at least one court to encompass both the concept of rehabilitation and liquidation, even where the debtor has no equity in the property. See, In re Koopmans, 22 B.R. 395, 396-408 (Bkrtcy.D.Utah 1982). But see contra: P. Murphy, Creditors' Rights in Bankruptcy, § 6.15 at 6-23-6-24 (1980); In re Antilles Yachting, Inc., 4 B.R. 470 (Bkrtcy.D.V.I.1980); In re Terra Mar Associates, 3 B.R. 462 (Bkrtcy.D.Conn.1980); In re Kors, Inc., 11 B.R. 324 (Bkrtcy.D.Vt.1981). In Koopmans, supra, the court rejected a “rehabilitation” test in applying § 362(d)(2)(B) for the following: “[Pjroperty in which the debtor has no equity is necessary to an effective reorga nization whenever it is necessary, either in the operation of the business or in a plan, to further the interests of the estate through rehabilitation or liquidation.” 22 B.R. at 407. But even if the Court were to apply this liberal test here, the Court would still be compelled to grant relief under § 362(d)(2)(B). The burden of proof in showing that the property is necessary to an effective reorganization is in the debtors. 11 U.S.C. § 362(g)(2). The debtors have not convinced the Court that the subject property is in any way necessary to the operation of the debtors’ business. Nor have they filed a disclosure statement or a plan of reorganization so as to indicate to the Court and parties in interest their plan for liquidation of the subject properties and the necessity for liquidation by them. Moreover, it bears noting that in November 1982," }, { "docid": "23577657", "title": "", "text": "reading would far expand the intent manifest in the legislative history and be inconsistent with the scheme for allowance of secured claims. As applied here it is clear that the banks are adequately protected. The value of the collateral has not decreased since the filing of the petition. Instead, it has increased. That there is a deficiency is not enough. PROPERTY NECESSARY FOR AN EFFECTIVE REORGANIZATION Since the standards for relief contained in § 362(d) are stated in the disjunctive, our holding that Barclay’s'and Marine Midland are adequately protected under § 362(d)(1) is not dispositive of this adversary proceeding. Section 362(d)(2) also provides for relief from a stay against property if the debtor does not have equity in such property and if such property is not necessary to an effective reorganization. Given the conceded lack of equity, the question is whether the Lionel shares held by the banks are necessary to an effective reorganization. The sum and substance of the debtor’s argument on this score is simple: that although there is no equity, it is possible that the stock may rise in value so that it can be sold pursuant to a liquidating plan of reorganization at a price sufficient not only to satisfy the banks but also to provide a return to unsecured creditors. This position raises an issue not necessary for decision here. Courts have disagreed whether Section 362(d)(2) requires relief from the stay when a liquidating plan is contemplated. Compare In re Terra Mar Associates, 3 B.R. 462, 6 Bankr.Ct.D. 150 (Bkrtcy.D.Conn.1980) (showing potential rehabilitation required) with In re Koopmans, 22 B.R. 395, 9 Bankr.Ct.D. 514, 6 Collier Bankr.Cas.2d 1414 (Bkrtcy.D.Utah 1982) (liquidation plan held sufficient). Regardless of the resolution of that issue, the courts have required the debtor to show that an effective reorganization is possible and that the property will contribute to it. Pine Lake, 19 B.R. 819; In re Dublin Properties, 12 B.R. 77, 14 Collier Bankr.Cas.2d 885, (Bkrtcy.E.D.Pa.1981); In re Terra Mar Associates, 3 B.R. 462, 6 Bankr.Ct.D. 150 (Bkrtcy.D.Conn.1980). This should not mean, however, that a debt- or is required to demonstrate" }, { "docid": "23502096", "title": "", "text": "worth in the neighborhood of $3.0-5.5 million. Therefore, under § 362(d)(2), the only issue is whether the property is necessary for an effective reorganization. Inasmuch as it is the primary asset of the debtor, it is obvious that if there is to be any reorganization, the property in question would be essential in such a plan. The real question is whether the debtor has any likelihood of effectively reorganizing at all. The fight, then, is over the word “effective”. In the short life of this reorganization proceeding, the debtor has floated four trial balloons as to possible plans. It has suggested “condominiumizing” the project; changing the nature of the life-care contract from a life-lease with initial endowment to a rental program and then bootstrapping; selling the project to some other entity with the debtor being hired to provide the services to the residents; and fi nally, simply liquidating the facility. The bank’s most vociferous arguments have been directed narrowly to the first and the fourth alternatives. Addressing the last alternative first, the bank argues that the term “effective reorganization” in § 362(d)(2)(B) does not include liquidation. It cites no authority for this proposition. Instead, it points to a comment by Professor Frank Kennedy, one of the drafters of the Bankruptcy Code, contained in a law review article and In re Terra Mar Associates, 3 B.R. 462, 6 B.C.D. 150, 153 (Bankr.D.Conn.1980), which cited it, for the general proposition that when the debtor has no equity in a particular property, the debtor’s mere “hope of rehabilitation is not enough, of course, to justify the continuation of the stay when rehabilitation is hopeless or the stay threatens injury to the lienor’s security.” Kennedy, The Automatic Stay In Bankruptcy, 11 U.Mich.J.L.Ref. 179, 244 (1978). Terra Mar is merely an exercise in fact-finding. There, the judge determined from the evidence before him, that there was no likelihood of any reorganization, including a sale of the property, within a reasonable time, and so lifted the stay. The comment by Professor Kennedy is indisputable, but of little help. The prospect of liquidation as a plan of" }, { "docid": "10195739", "title": "", "text": "or-in-Possession is considering the sale of condominiums in the building such that a reorganization could be possible and allowing the completion of a foreclosure would almost certainly eliminate any possibility of reorganization. Property is necessary for an effective reorganization whenever it is necessary either in the operation of the business or in a plan, to further the interests of the estate for rehabilitation or liquidation. In re Keller, at p. 477; In re Koopmans, 22 B.R. 395, 407 (Bkrptcy.Utah 1982). In the instant case the Dubuque Building is the major asset of the Debtor-in-Possession. The only other assets owned by the Debtor-in-Possession include two computers as well as other equipment necessary to run an office building. Given that the Dubuque Building is the sole major asset of the Debtor-in-Possession, this Court concludes that the Debtor-in-Possession has proven that the Dubuque Building is essential to an effective reorganization as required by 11 U.S.C. § 362(d)(2)(B). Therefore, this Court concludes that the automatic stay imposed by 11 U.S.C. § 362(a) cannot be lifted on the basis of 11 U.S.C. § 362(d)(2). Having examined 11 U.S.C. § 362(a)(2), the Court will now examine the proper mode of analysis regarding adequate protection then review the offer of adequate protection made to the creditors by the Debtor-in-Possession. Mode of Analysis When determining whether a creditor’s interest in collateral is adequately protected without recourse to relief from the automatic stay, lack of an equity cushion alone should not be determinative of the issue; rather, necessary evaluation is, first, of stability of collateral, second, of likelihood of reorganization, and, third, of credibility of debtor’s protection plan. In re Philadelphia Consumer Discount Co., 37 B.R. 946 (E.D.Pa.1984). The record is void of any evidence indicating that the value of the collateral, the Dubuque Building, will decline. In fact, there is evidence in the record to support the conclusion that the Dubuque Building may well increase in value. Therefore, the stability of the collateral value cannot be questioned. In fact, the Debtor has proposed as part of its plan of adequate protection to install a new roof on the" }, { "docid": "2179736", "title": "", "text": "reorganization, and where the junior lienholder has not appeared, it would be inequitable for the Court to prefer the junior lienholder’s presumed interest over the senior lienholder’s interest in relief from stay. If the junior lienholder desires to protect its interest, it may bid in at the foreclosure sale just as if the bankruptcy had not intervened. It presumes too much, the Court believes, to conclude that if there has been no request for relief by a junior lienholder, relief from stay is not in its best interest. Cf., In re Cote, supra, at 513. A junior lienholder may be perfectly content to have a senior lienholder obtain relief to commence foreclosure proceedings. Moreover, where equity is lacking to cushion the junior lienholder’s security, the junior lienholder may not be sufficiently confident of recovering its attorneys’ fees so as to warrant active involvement in obtaining relief from stay. The Court therefore concludes that Heller is entitled to relief under Code § 362(d)(2)(A). III. NECESSARY TO AN EFFECTIVE REORGANIZATION In addition to absence of equity, there must be a showing that the subject property is not necessary to an effective reorganization before the stay may be lifted. The July 15,1983 affidavit of debtor Carolyn Ann Faires in opposition to the motion for relief from stay states that the affiant was “making every effort to sell the properties” for the benefit of creditors. Ms. Hanson testified to the same effect at trial. Thus it is certainly not immediately apparent that the subject properties are “necessary to an effective reorganization.” However, as noted by the debtors, the term “reorganization” as used in § 362(d)(2)(B) has been held by at least one court to encompass both the concept of rehabilitation and liquidation, even where the debtor has no equity in the property. See, In re Koopmans, 22 B.R. 395, 396-408 (Bkrtcy.D.Utah 1982). But see contra: P. Murphy, Creditors' Rights in Bankruptcy, § 6.15 at 6-23-6-24 (1980); In re Antilles Yachting, Inc., 4 B.R. 470 (Bkrtcy.D.V.I.1980); In re Terra Mar Associates, 3 B.R. 462 (Bkrtcy.D.Conn.1980); In re Kors, Inc., 11 B.R. 324 (Bkrtcy.D.Vt.1981). In Koopmans," }, { "docid": "10182581", "title": "", "text": "Chapter 11 petition or conversion of said petition to Chapter 7 by showing the following: (a) a continuing loss or diminution of the estate, and (b) the absence of a reasonable likelihood of rehabilitation, (emphasis supplied) 11 U.S.C. § 1112(b)(1). The imposition of a rehabilitation test on 11 U.S.C. § 362(d)(2)(B) would make the provisions of 11 U.S.C. § 1112(b)(1) meaningless. See, In re Pine Lake Village Apartment Co., 19 B.R. 819, 828 (Bkrtcy.S.D.N.Y.1982) Property is necessary for an effective reorganization “whenever it is necessary either in the operation of the business or in a plan, to further the interests of the estate through rehabilitation or liquidation.” In re Koopmans, 22 B.R. 395, 407 (Bkrptcy.Utah 1982). In this case the Debtors-in-Possession have no equity in the property upon which FLB holds first mortgages, but it is necessary to an effective reorganization as is set forth in 11 U.S.C. § 362(d)(2)(B). The property is necessary to an effective reorganization because the Debtors-in-Possession are farmers who utilize the property in their farming operation. In addition, the income tax returns of the Debtors-in-Possession as well as the date of the mortgages to FLB indicate that the farming operation of the Debtors-in-Possession has been a large scale operation for a number of years. Given the scale of the farming operation of the Debtors-in-Possession the loss of over 85 percent of the farmland that they have been farming would almost certainly doom any prospect for an effective reorganization of the Debtors-in-Possession. Adequate Protection Having examined the Movant’s arguments to lift the stay pursuant to 11 U.S.C. § 362(d)(2) the Court will now consider Movant’s arguments regarding lack of adequate protection. Adequate protection provided to creditors in Chapter 11 is interim protection. It is a palliative of the worst: reorganization, dismissal, or liquidation which will provide the final relief. In re Alyucan Interstate Corp., 12 B.R. 803, 806 (Bkrtcy.Utah 1981). In In re South Village, Inc., 25 B.R. 987, 989 (Bkrtcy.Utah 1982) Judge Mabey points out that “[adequate protection, illustrated in 11 U.S.C. Section 361, is protection of an ‘interest in property’ from any decrease in" }, { "docid": "23502097", "title": "", "text": "the term “effective reorganization” in § 362(d)(2)(B) does not include liquidation. It cites no authority for this proposition. Instead, it points to a comment by Professor Frank Kennedy, one of the drafters of the Bankruptcy Code, contained in a law review article and In re Terra Mar Associates, 3 B.R. 462, 6 B.C.D. 150, 153 (Bankr.D.Conn.1980), which cited it, for the general proposition that when the debtor has no equity in a particular property, the debtor’s mere “hope of rehabilitation is not enough, of course, to justify the continuation of the stay when rehabilitation is hopeless or the stay threatens injury to the lienor’s security.” Kennedy, The Automatic Stay In Bankruptcy, 11 U.Mich.J.L.Ref. 179, 244 (1978). Terra Mar is merely an exercise in fact-finding. There, the judge determined from the evidence before him, that there was no likelihood of any reorganization, including a sale of the property, within a reasonable time, and so lifted the stay. The comment by Professor Kennedy is indisputable, but of little help. The prospect of liquidation as a plan of reorganization simply is not discussed. The debtor has cited these cases for the proposition that “effective reorganization” includes liquidation: In re W.S. Sheppley & Co., 45 B.R. 473, 12 B.C.D. 709 (Bankr.N.D.Iowa 1984); In re Shriver, 33 B.R. 176, 11 B.C.D. 93 (Bankr.N.D.Ohio 1983); In re Saypol, 31 B.R. 796, 10 B.C.D. 1057 (Bankr.S.D.N.Y.1983); In re Koopmans, 22 B.R. 395, 9 B.C.D. 514, 6 C.B. C.2d 1414 (Bankr.D.Utah 1982). It principally relies on Judge Mabey’s exhaustive analysis in Koopmans. Judge Thinnes, in both In re Keller, 45 B.R. 469 (Bankr.N.D.Iowa 1984) and In re W.S. Sheppley & Co., supra, adopted the reasoning and holding of Koopmans. Neither Shriver nor Say-pol is authority for the proposition for which it is cited. We are persuaded by the reasoning of In re Koopmans, supra, and therefore hold that even a plan of complete liquidation of the facility pursuant to 11 U.S.C. § 1123(b)(4) may be an “effective” reorganization for purposes of § 362(d)(2)(B). However, the debtor does not propose complete liquidation — at least not yet. It has" }, { "docid": "18734271", "title": "", "text": "reorganization is feasible in addition to showing that his property 'is necessary to that reorganization. If he fails to show that, the automatic stay will be lifted. This court believes that reading a feasibility test from the words “effective reorganization” is simply reading something that is not there. It strains belief to imagine that Congress used the phrase “necessary to an effective reorganization” to mean “necessary to effect a reorganization” and that there be a “reasonable probability of successful rehabilitation within a reasonable time.” In re Terra Mar Assocs., 3 B.R. 462, 465-66 (Bankr.D.Conn.1980). If Congress had meant that, it would have said it. Congress clearly knew how to state such a test, since it did so in 11 U.S.C. § 1112(b)(1). See In re Koopmans, 22 B.R. 395, 398 (Bankr.D.Utah 1982). The lack of a feasibility test in the language of § 362(d)(2) shows that Congress did not intend that a feasibility test be used. Id. There is an even more compelling argument against the feasibility test in addition to the semantic argument discussed above. A feasibility test is simply impractical under § 362(d)(2). If such a test is read into that section, a debtor must prove that he can propose a viable plan of reorganization before he has had the opportunity to prepare such a plan. That puts the cart before the horse. What Congress intended to be a mere preliminary becomes the main event. It seems clear that a feasibility test under § 362(d) is completely inconsistent with Congress’ decision to defer a feasibility test to a later, more appropriate stage in the bankruptcy proceedings. See Koopmans, 22 B.R. at 401, 404 n. 17. A debtor must be allowed the opportunity to formulate a plan, free from creditor pressures, before he is forced to prove the feasibility of that plan. See id. at 404 n. 17. The provisions of § 362(d)(2) were not designed to take away that opportunity. Instead, they were designed to allow creditors to strip off any property from the debtor’s estate that will not be needed in an effective reorganization. For example, a" }, { "docid": "7995294", "title": "", "text": "for adequate protection or relief from stay. The court must find that “there is a reasonable possibility of a successful reorganization within a reasonable time” In re Terra Mar Associates, 3 B.R. 462, 466, 6 BCD 150, 152 (Bkrtcy.Conn.1980). Therefore, the fact that the property is indispensable to a reorganization will not prevent this court from granting relief from the automatic stay. This court has already found in Finding of Fact number 10 that the debtor’s plan is “purely speculative”. Bankruptcy Judge Robert L. Krechevsky in In re Terra Mar Associates, supra, 3 B.R. at 466, 6 BCD at 153, held: The debtors claim that it is inherent in any chapter 11 proceeding, where the debtor’s main asset consists of real estate and its business is the operation of that particular real estate, that the loss of the real estate thwarts any chance of a successful reorganization, and, therefore, the property is indispensable to the rehabilitation of the debtor. ‘Indispensability of the property to the debtor’s survival and hope of rehabilitation is not enough, of course, to justify continuation of the stay when rehabilitation is hopeless or the stay threatens injury to the lienor’s security.’ Kennedy, The Automatic Stay in Bankruptcy, 11 U.Mich. L.J.Ref. 179, 244 (1978). See also In re Shriver, 33 B.R. 176, 11 BCD 93 (Bkrtcy.N.D.Ohio 1983) and In re Faires, 34 B.R. 549 (Bkrtcy.W.D.Wash.1983). In short, the fact that property may be indispensable is irrelevant, if the debtor has no prospects of an “effective reorganization”. The debtor’s disclosure statement falls far short of an outline for an effective reorganization. Indeed, it supports Falls Savings’ position that the property is not necessary to an effective reorganization. The court also finds that the debtor has failed to provide Falls Savings with adequate protection. “Adequate protection” is not defined in the Bankruptcy Code. Section 361 of the Bankruptcy Code lists three non-exclusive examples of adequate protection to illustrate what is meant by the concept. The text of section 361 is as follows: When adequate protection is required under section 362, 363, or 364 of this title of an interest" }, { "docid": "18734269", "title": "", "text": "and that the debtor must show that reorganization based on the property is feasible in addition to showing that the property is necessary to an effective reorganization. This court agrees with the appellant and its narrow “necessity” test. This court is convinced by the reasoning contained in the case of In re Koopmans, 22 B.R. 395 (Bankr.D.Utah 1982). The Koopmans case is not squarely on point with this case. It concerned the tangential issue of whether “reorganization” includes “liquidation” as well as “rehabilitation” rather than the issue of whether a “necessity” test or a “feasibility” test is mandated by 11 U.S.C. § 362(d)(2)(B). Nevertheless, the analysis used to address the issue decided in Koopmans is equally useful in this case. The reasoning and arguments set forth in Koopmans support this court’s adoption of the necessity test. In enacting the modern bankruptcy code, Congress carefully erected a structure designed to protect and assist debtors without unduly harming the rights of creditors. A balance was struck between debtors’ rights and creditors’ rights. The federal courts, when interpreting the bankruptcy act, must be sensitive to the balance struck by Congress. Unless the intent of Congress is painstakingly followed, the del icate balance Congress has struck will be upset. It seems quite clear that Congress intended that a “necessity” test be used under § 362(d). The first clue indicating that is the language of the statute itself. The statute provides that the bankruptcy court shall grant relief from the automatic stay against a particular property if: (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. 11 U.S.C. § 362(d)(2). The language of subsection (B) clearly mandates a “necessity” test, but says nothing about a “feasibility” test. The many courts that have adopted a feasibility test have derived it from the words “effective reorganization.” See, e.g., In re Greiman, 45 B.R. 574 (Bankr.N.D.Iowa 1985). If there can be no effective reorganization, they argue, then none of the debtor’s property will be necessary to that reorganization. Therefore, the debtor must show that a" }, { "docid": "18734270", "title": "", "text": "the bankruptcy act, must be sensitive to the balance struck by Congress. Unless the intent of Congress is painstakingly followed, the del icate balance Congress has struck will be upset. It seems quite clear that Congress intended that a “necessity” test be used under § 362(d). The first clue indicating that is the language of the statute itself. The statute provides that the bankruptcy court shall grant relief from the automatic stay against a particular property if: (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. 11 U.S.C. § 362(d)(2). The language of subsection (B) clearly mandates a “necessity” test, but says nothing about a “feasibility” test. The many courts that have adopted a feasibility test have derived it from the words “effective reorganization.” See, e.g., In re Greiman, 45 B.R. 574 (Bankr.N.D.Iowa 1985). If there can be no effective reorganization, they argue, then none of the debtor’s property will be necessary to that reorganization. Therefore, the debtor must show that a reorganization is feasible in addition to showing that his property 'is necessary to that reorganization. If he fails to show that, the automatic stay will be lifted. This court believes that reading a feasibility test from the words “effective reorganization” is simply reading something that is not there. It strains belief to imagine that Congress used the phrase “necessary to an effective reorganization” to mean “necessary to effect a reorganization” and that there be a “reasonable probability of successful rehabilitation within a reasonable time.” In re Terra Mar Assocs., 3 B.R. 462, 465-66 (Bankr.D.Conn.1980). If Congress had meant that, it would have said it. Congress clearly knew how to state such a test, since it did so in 11 U.S.C. § 1112(b)(1). See In re Koopmans, 22 B.R. 395, 398 (Bankr.D.Utah 1982). The lack of a feasibility test in the language of § 362(d)(2) shows that Congress did not intend that a feasibility test be used. Id. There is an even more compelling argument against the feasibility test in addition to the semantic argument discussed" }, { "docid": "23661041", "title": "", "text": "the value of the property during [the] time the automatic stay remains in effect.” Pistole v. Mellor (In re Mellor), 734 F.2d 1396, 1400 n. 2 (9th Cir.1984). Where \"equity” requires a consideration of all claims against the debtor’s property, \"equity cushion” only requires a consideration of an individual creditor’s interest and priority in the property. . Prior to Timbers, two different tests had evolved to determine whether property was necessary for an effective reorganization under § 362(d)(2)(B). The minority of courts had adopted the “necessity test” which provides that § 362(d)(2)(B) is satisfied \"whenever [property] is necessary, either in the operation of the business or in a plan, to further the interests of the estate_” Empire Enters., Inc. v. Koopmans (In re Koopmans), 22 B.R. 395, 407 (Bankr.D.Utah 1982). The test did not require a showing by the debtor that a reasonable likelihood of a successful reorganization exists. Id. at 405-06. Other decisions adopting the necessity test include In re Rassier, 85 B.R. 524 (Bankr.D.Minn.1988); Hunter Sav. Ass’n v. Padgett (In re Padgett), 74 B.R. 65 (Bankr.S.D.Ohio 1987); In re Deeter, 53 B.R. 623 (Bankr.N.D.Ind.1985); In re Sunstone Ridge Assocs., 51 B.R. 560 (Bankr.D.Utah 1985); In re W.S. Sheppley Co., 45 B.R. 473 (Bankr.N.D.Iowa 1984). The majority of courts adopted a so-called “feasibility test” under which the debtor must show not only that the property is necessary to a reorganization but also that a reorganization is reasonably likely to occur. In re Planned Sys., Inc., 78 B.R. 852, 865 (Bankr.S.D.Ohio 1987). Other decisions adopting the feasibility test include Grundy Nat’l Bank v. Tandem Mining Corp., 754 F.2d 1436 (4th Cir.1985); Albany Partners, Ltd. v. Westbrook (In re Albany Partners, Ltd.), 749 F.2d 670 (11th Cir.1984); In re Cablehouse, Ltd., 68 B.R. 309 (Bankr.S.D.Ohio 1986); In re 6200 Ridge, Inc., 69 B.R. 837 (Bankr.E.D.Pa.1987); In re Beilina’s Restaurants II, Inc., 52 B.R. 509 (Bankr.S.D.Fla.1985); Matter of Terra Mar Assocs., 3 B.R. 462 (Bankr.D.Conn.1980). . In construing this language, some reported decisions post-Timbers have continued to adopt the “feasibility test\". See, e.g., Carteret Sav. Bank v. Nastasi-White, Inc. (Matter of East-West" }, { "docid": "10168499", "title": "", "text": "(Bankr.D.Conn.1981) (“If all the debtor can offer at this time is high hopes without any financial prospects on the horizon to warrant a conclusion that a reorganization in the near future is likely, it cannot be said that the property is necessary to an ‘effective’ reorganization.”); In re Terra Mar Assocs., 3 B.R. at 466 (\" ‘Indispensability of the property to the debtor’s survival and hope of rehabilitation is not enough ... to justify continuation of the stay when rehabilitation is hopeless_’”); see also Grundy Nat. Bank v. Tandem Mining Corp., 754 F.2d 1436, 1440 (4th Cir.1985) (\"§ 362(d)(2)(B) presupposes that the property must be necessary to an 'effective' reorganization if relief from the stay is to be properly denied.”) (emphasis in original). . Because a plan of reorganization under Chapter 11 can, at least since 1978, consist of a liquidation of the debtor, there may be circumstances under which the debtor is able to satisfy the “effective reorganization” test of § 362(d)(2) by showing that the property at issue is necessary to an effective liquidation of the debtor under Chapter 11, as distinguished from an effective rehabilitation of the debtor. See generally In re Koopmans, 22 B.R. 395 (Bankr.D.Utah 1982). . In explaining the purpose and function of what is now § 1121, the House Report notes: Proposed chapter 11 recognizes the need for the debtor to remain in control to some degree, or else debtors will avoid the reorganization provisions in the bill until it would be too late for them to be an effective remedy. At the same time, the bill recognizes the legitimate interests of creditors, whose money is in the enterprise as much as the debtor’s, to have a say in the future of the company. The bill gives the debtor an exclusive right to propose a plan for 120 days. In most cases, 120 days will give the debtor adequate time to negotiate a settlement, without unduly delaying creditors. The court is given the power, though, to increase or reduce the 120-day period depending on the circumstances of the case. For example, if an" }, { "docid": "14865191", "title": "", "text": "perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title; (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title; (7) the setoff of any debt owing to the debt- or that arose before the commencement of the case under this title against any claim against the debtor; and (8) the commencement or continuation of a proceeding before the United States Tax Court concerning the debtor. . 11 U.S.C. § 362(d) provides: (d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay— (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or (2) with respect to a stay of an act against property under subsection (a) of this section, if— (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. . See, e.g., In re Smithfield Estates, Inc., 48 B.R. 910 (Bankr.D.R.1.1985) (rejecting American Mariner analysis); In re Keller, 45 B.R. 469 (Bankr.N.D.Iowa 1984); In re Rowe, 43 B.R. 157 (Bankr.E.D.Mo.1984); In re Aegean Fare, Inc., 34 B.R. 965 (Bankr.D.Mass.1983); In re Shriver, 33 B.R. 176 (Bankr.N.D.Ohio 1983); In re Cantr-up, Til B.R. 1004 (Bankr.D.Colo.1983); In re Saypol, 31 B.R. 796 (Bankr.S.D.N.Y.1983); In re South Village, Inc., 25 B.R. 987 (Bankr.D.Utah 1982); In re Pine Lake Village Apartment Co., 19 B.R. 819 (Bankr.S.D.N.Y.1982); In re Alyucan Interstate Corp., 12 B.R. 803 (Bankr.D.Utah 1981). See also, 2 Collier on Bankruptcy f 361.-01 (L. King 15th ed. 1985). . In re Monroe Park, 17 B.R. 934 (D.Del.1982); In re Virginia Foundry Co., Inc., 9 B.R. 493 (W.D.Va.1981); In re Bear Creek MiniStorage, Inc., 49 B.R. 454 (Bankr.S.D.Tex.1985); In re Mary Harpley Builder, Inc., 44 B.R. 151 (Bankr." }, { "docid": "18749098", "title": "", "text": "2 (loss of recoverable value is “baseline consideration\" in adequate protection determination, and further protection may be appropriate depending on \"the nature and history of the loan transaction, the behavior of the parties, and the prospects of or activity toward reorganization”). . The great majority of lower courts that considered the issue prior to American Mariner, and several after it, held that a secured creditor is entitled only to protection against a decline in the value of its collateral through use, decay or depreciation. The leading cases in favor of this view are those of Judge Mabey in In re South Village, Inc., 25 B.R. 987 (Bankr.D.Utah 1982), and In re Alyucan Interstate Corp., 12 B.R. 803 (Bankr.D.Utah 1981). For other cases holding that §§ 361-362 protect only against depreciation in the collateral, see In re Smithfield Estates, Inc., 48 B.R. 910, 914 (Bankr.D.R.1.1985); In re Sun Valley Ranches, Inc., 38 B.R. 595, 598 (Bankr.D.Idaho 1984); In re Keller, 45 B.R. 469, 473 (Bankr.N.D.Iowa 1984); In re IKS. Sheppley & Co., 45 B.R. 473, 480 (Bankr.N.D.Iowa 1984); In re Cantrup, 32 B.R. 1004, 1005 (Bankr.D.Colo. 1983); In re Shriver, 33 B.R. 176, 183 (Bankr.N. D.Ohio 1983); In re Pine Lake Village Apartment Co., 19 B.R. 819, 827 (Bankr.S.D.N.Y.1982); In re Rameo Well Service, Inc., 32 B.R. 525, 531 (W.D.Okla.1983); In re Saypol, 31 B.R. 796, 800 (S.D.N.Y.1983); In re Aegean Fare, Inc., 34 B.R. 965 (Bankr.D.Mass.1983); In re Wheeler, 12 B.R. 908, 909-10 (Bankr.D.Mass.1981); In re Bom, 10 B.R. 43, 48 (Bankr.S.D.Tex.1981) (Patton, J.) (adequate protection assures creditor that “he will not be faced with a decrease in the value of his collateral\" during the pendency of the automatic stay); In re Nixon Mach. Co., 9 B.R. 316, 317-18 (Bankr.E.D.Tenn.1981); cf. In re Man-ville Forest Products Corp., 43 B.R. 293, 302 n. 7 (Bankr.S.D.N.Y.1984) (stating in § 1124 proceeding that opportunity cost payments are \"inappropriate and of dubious universal application [at] this early triage stage”). . See O’Toole, supra, 56 Am.Bankr.L.J. at 263 (§ 361 requires adequate protection only against decrease in value of collateral); Rogers, supra, 96 Harv.L.Rev. at" }, { "docid": "23502098", "title": "", "text": "reorganization simply is not discussed. The debtor has cited these cases for the proposition that “effective reorganization” includes liquidation: In re W.S. Sheppley & Co., 45 B.R. 473, 12 B.C.D. 709 (Bankr.N.D.Iowa 1984); In re Shriver, 33 B.R. 176, 11 B.C.D. 93 (Bankr.N.D.Ohio 1983); In re Saypol, 31 B.R. 796, 10 B.C.D. 1057 (Bankr.S.D.N.Y.1983); In re Koopmans, 22 B.R. 395, 9 B.C.D. 514, 6 C.B. C.2d 1414 (Bankr.D.Utah 1982). It principally relies on Judge Mabey’s exhaustive analysis in Koopmans. Judge Thinnes, in both In re Keller, 45 B.R. 469 (Bankr.N.D.Iowa 1984) and In re W.S. Sheppley & Co., supra, adopted the reasoning and holding of Koopmans. Neither Shriver nor Say-pol is authority for the proposition for which it is cited. We are persuaded by the reasoning of In re Koopmans, supra, and therefore hold that even a plan of complete liquidation of the facility pursuant to 11 U.S.C. § 1123(b)(4) may be an “effective” reorganization for purposes of § 362(d)(2)(B). However, the debtor does not propose complete liquidation — at least not yet. It has considered marketing the facility as condominiums. The bank claims that such a proposal could not lead to an “effective” reorganization because a plan containing it could not be confirmed. It stated that to convert the facility into condominiums would violate the debtor’s “use of project” covenant contained in § 4.2 of the contract. It argues that the debtor seeks to gain the benefits of the contract without performing its obligations and that we ought not allow it to do so. If we had held that the Lease Purchase Contract established a true lease, the argument would be sound, as one who assumes a lease or executory contract assumes it cum onere. In re Ashley, 41 B.R. 67, 71, 11 C.B.C.2d 822, 827 (Bankr.E.D.Mich.1984). However, the contract does not create a lease; instead it is a security agreement as to the personalty, and a mortgage as to the realty of the facility. One does not “assume” a mortgage or security agreement, and undoubtedly the debtor has not done so here. The debtor was in material breach" }, { "docid": "7995295", "title": "", "text": "course, to justify continuation of the stay when rehabilitation is hopeless or the stay threatens injury to the lienor’s security.’ Kennedy, The Automatic Stay in Bankruptcy, 11 U.Mich. L.J.Ref. 179, 244 (1978). See also In re Shriver, 33 B.R. 176, 11 BCD 93 (Bkrtcy.N.D.Ohio 1983) and In re Faires, 34 B.R. 549 (Bkrtcy.W.D.Wash.1983). In short, the fact that property may be indispensable is irrelevant, if the debtor has no prospects of an “effective reorganization”. The debtor’s disclosure statement falls far short of an outline for an effective reorganization. Indeed, it supports Falls Savings’ position that the property is not necessary to an effective reorganization. The court also finds that the debtor has failed to provide Falls Savings with adequate protection. “Adequate protection” is not defined in the Bankruptcy Code. Section 361 of the Bankruptcy Code lists three non-exclusive examples of adequate protection to illustrate what is meant by the concept. The text of section 361 is as follows: When adequate protection is required under section 362, 363, or 364 of this title of an interest of an entity in property, such adequate protection may be provided by— (1) requiring the trustee to make periodic cash payments to such entity, to the extent that the stay under section 362 of this title, use, sale or lease under section 363 of this title, or any grant of a lien under section 364 of this title results in a decrease in the value of such entity’s interest in such property; (2) providing to such entity an additional or replacement lien to the extent that such stay, use, sale, lease, or grant results in a decrease in the value of such entity’s interest in such property; or (3) granting such other relief, other than entitling such entity to compensation allowable under section 503(b)(1) of this title as an administrative expense, as will result in the realization by such entity of the indubitable equivalent of such entity’s interest in such property. First, it should be noted that although the debtor has filed a disclosure statement it has not filed an actual plan of reorganization. The" }, { "docid": "23577658", "title": "", "text": "possible that the stock may rise in value so that it can be sold pursuant to a liquidating plan of reorganization at a price sufficient not only to satisfy the banks but also to provide a return to unsecured creditors. This position raises an issue not necessary for decision here. Courts have disagreed whether Section 362(d)(2) requires relief from the stay when a liquidating plan is contemplated. Compare In re Terra Mar Associates, 3 B.R. 462, 6 Bankr.Ct.D. 150 (Bkrtcy.D.Conn.1980) (showing potential rehabilitation required) with In re Koopmans, 22 B.R. 395, 9 Bankr.Ct.D. 514, 6 Collier Bankr.Cas.2d 1414 (Bkrtcy.D.Utah 1982) (liquidation plan held sufficient). Regardless of the resolution of that issue, the courts have required the debtor to show that an effective reorganization is possible and that the property will contribute to it. Pine Lake, 19 B.R. 819; In re Dublin Properties, 12 B.R. 77, 14 Collier Bankr.Cas.2d 885, (Bkrtcy.E.D.Pa.1981); In re Terra Mar Associates, 3 B.R. 462, 6 Bankr.Ct.D. 150 (Bkrtcy.D.Conn.1980). This should not mean, however, that a debt- or is required to demonstrate that it has actually proposed a plan of reorganization which is acceptable to its creditors. Dublin Properties, 12 B.R. at 8, 4 Collier Cas.2d at 889. The debtor need only prove that there is a reasonable probability that it will be able to propose a plan that will result in a successful reorganization within a reasonable time. Ibid.; In re Penn York Manufacturing, Inc., 14 B.R. 51, 4 Collier Bankr. Cas.2d 965 (Bkrtcy.M.D.Pa.1981); Terra Mar 3 B.R. at 466, 6 Bankr.Ct.D. at 153. A reasonable probability, however, is not to be grounded solely on speculation. Congress did not require an undersecured creditor to sit idly by solely in reliance on the proposition that the collateral might rise in value sufficient to fund a plan. Indeed, Congress intended that secured creditors not bear the brunt of such speculation of this nature. In § 361(3) Congress expressly barred the court from affording adequate protection by awarding a secured creditor with an administrative priority claim “because such protection is too uncertain to be meaningful.” Senate Report No. 989," }, { "docid": "10182580", "title": "", "text": "property is not necessary for an effective reorganization because no plan of rehabilitation can be confirmed as long as the Debtors-in-Possession maintain an interest in the property. Assuming arguen-do that FLB’s proposition is correct that no plan of rehabilitation can be confirmed while the Debtors-in-Possession maintain an interest in the property, rehabilitation is not the appropriate standard to be applied in making the determination that property is necessary for an effective reorganization. The term “necessary for an effective reorganization” does not require proof that a plan of rehabilitation can be confirmed. This conclusion is borne out by the fact that an effective reorganization can include a liquidation. See, 11 U.S.C. § 1123(b)(4). Under Chapter 11 a liquidation plan is allowed if there is not a continuing loss to the estate. In re Koopmans, 22 B.R. 395, 403 (Bkrptcy.Utah 1982). The proper manner to allege that there is no reasonable likelihood of rehabilitation for the Debtors-in-Possession is to bring a motion under 11 U.S.C. § 1112(b)(1) which allows an interested party to seek dismissal of a Chapter 11 petition or conversion of said petition to Chapter 7 by showing the following: (a) a continuing loss or diminution of the estate, and (b) the absence of a reasonable likelihood of rehabilitation, (emphasis supplied) 11 U.S.C. § 1112(b)(1). The imposition of a rehabilitation test on 11 U.S.C. § 362(d)(2)(B) would make the provisions of 11 U.S.C. § 1112(b)(1) meaningless. See, In re Pine Lake Village Apartment Co., 19 B.R. 819, 828 (Bkrtcy.S.D.N.Y.1982) Property is necessary for an effective reorganization “whenever it is necessary either in the operation of the business or in a plan, to further the interests of the estate through rehabilitation or liquidation.” In re Koopmans, 22 B.R. 395, 407 (Bkrptcy.Utah 1982). In this case the Debtors-in-Possession have no equity in the property upon which FLB holds first mortgages, but it is necessary to an effective reorganization as is set forth in 11 U.S.C. § 362(d)(2)(B). The property is necessary to an effective reorganization because the Debtors-in-Possession are farmers who utilize the property in their farming operation. In addition, the income" }, { "docid": "10220200", "title": "", "text": "re Anderson Oaks, 77 B.R. [108] at 108 [Bankr.W.D.Tex.1987]; Matter of Terra Mar Assoc., 3 B.R. 462 (Bankr.D.Conn.1980); In re Boca Development Assoc., 21 B.R. 624 (Bankr.S.D. N.Y.1982). Under this test, the debtor must show that there is a reasonable probability of a successful reorganization within a reasonable time. This proposition was recently affirmed by Justice Scalia in United Savings Association of Texas v. Timbers of Inwood Forest Associates Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). Justice Scalia declared that there are situations early in the chapter 11 proceedings—even during the initial 4-month period within which the debtor has the exclusive right to submit its plan—where relief from stay under § 362(d)(2) is appropriate. Each case must be viewed on the basis of its own particular facts, and there must be a balancing of the interest of the debtor with the interest of the secured creditor in its collateral. See, In re Diplomat Electronics Corp., 82 B.R. 688 (Bankr.S. D.N.Y.1988), in which the court, guided by Timbers, granted the creditor’s motion for relief from stay pursuant to § 362(d)(2) during the 4-month exclusive period in which the debtor had to file its plan. There is also a contrary line of cases which applies the necessity test. Under this standard, the debtor need not show a reasonable likelihood of a successful reorganization. All that need be shown is that no reorganization is possible without the property. See, In re Padgett, 74 B.R. 65 (Bankr.S.D. Ohio 1987); In re Koopmans, 22 B.R. 395 (Bankr.D. Utah 1982); In re Rassier, 85 B.R. 524, 17 B.C.D. 668 (Bankr.D.Minn.1988). This court rejects the necessity test. That test ignores the word ‘effective’ appearing in § 362(d)(2) and is contrary to Justice Scalia’s pronouncement in Timbers. This court adopts the feasibility test as constituting the better reasoned view.” In accord with the above holding is Matter of 8th Street Village Ltd. Partnership, 88 B.R. 853 (Bankr.N.D.Ill.1988), aff’d, 94 B.R. 993 (N.D.Ill.1988). In In re Chandler, 98 B.R. 516, 6 Mont.B.R. 114, 117 (Bankr. Mont.1988), the Court specifically adopted the Timbers rationale, and further" } ]

[ { "docid": "2230845", "title": "", "text": "is entitled to a judgment on the pleadings because the claim against it is barred by the statute of limitations. “The test applicable for judgment on the pleadings is whether or not, when viewed in the light most favorable to the party against whom the motion is made, genuine issues of material fact remain or whether the case can be decided as a matter of law.” Smith v. McDonald, 562 F.Supp. 829, 842 (M.D.N.C.1983), aff'd, 737 F.2d 427 (4th Cir.1984), aff'd, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985). When a defendant moves for a judgment on the pleadings, the well pleaded factual allegations of the complaint are taken as true, but those of the answer are taken as true only when they are not denied or do not conflict with the complaint. Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C.1991); 5A C. Wright & A. Miller, Federal Practice and Procedure § 1368 at 520 (1990). A motion under Rule 12(c) is an appropriate procedure when the statute of limitations is alleged to provide an effective bar against a plaintiff’s claims. 5A C. Wright & A. Miller, Federal Practice and Procedure § 1367 at 511 (1990); See also Hemingway v. Shull, 286 F.Supp. 243 (D.S.C.1968). There are no disputed questions of material fact as to the statute of limitations issue raised by Travelers. The court must determine, as a matter of law, when the claim against Travelers accrued, so as to begin the running of the statute of limitations. The parties agree that the three year statute of limitations provided by S.C.Code Ann. § 15-3-530(5) (Law.Co-op.1976 & Supp.1992) applies to Tollison’s claims. “The Supreme Court of South Carolina has held that the statute of limitations begins to run when the cause of action accrues and whenever there is a plaintiff who can sue, and a defendant who can be sued.” Macri v. Flaherty, 115 F.Supp. 739, 741 (E.D.S.C.1953). The amended complaint, which asserts the claim against Travelers, was filed more than three years after Tolli-son’s injury. Tollison contends when the court applies the “discovery rule” in determining when" } ]

[ { "docid": "18179862", "title": "", "text": "(2009) (internal quotation marks omitted) (citing Twombly, 550 U.S. at 555, 127 S.Ct. at 1965). However, “[ujnlike on a Rule 12(b)(6) motion ... on a Rule 12(c) motion the [C]ourt may consider the Answer as well.” Alexander v. City of Greensboro, No. 1:09-CV-293, 2011 WL 3360644, at *2 (M.D.N.C. August 3, 2011); Rinaldi v. CCX, Inc., No. 3:05-cv-108, 2008 WL 2622971, at *2 n. 3 (W.D.N.C. July 2, 2008) (noting that “the Court considers the Answer as well as the Complaint”); Bradley v. Ramsey, 329 F.Supp.2d 617, 622 (W.D.N.C.2004) (finding that as it relates to Rule 12(b)(6), the key difference under Rule 12(c) is “the [C]ourt is to consider the [A]nswer as well as the [CJomplaint”). The “factual allegations in the [A]nswer are taken as true to the extent they have not been denied or do not conflict with the [CJomplaint.” Farmer v. Wilson Hous. Auth., 393 F.Supp.2d 384, 386 (E.D.N.C.2004) (internal quotation marks omitted) (citing Pledger v. North Carolina Dep’t of Health & Human Servs., 7 F.Supp.2d 705, 707 (E.D.N.C.1998)); Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C.1991). For the “purposes of this motion Defendant cannot rely on allegations of fact contained only in the [AJnswer, including affirmative defenses, which contradict [the] [CJomplaint” because Plaintiff was “not required to reply to Defendant’s [AJnswer, and all allegations in the [AJnswer are deemed denied.” Jadoff 140 F.R.D. at 332; Lefkoe v. Jos. A. Bank Clothiers, No. WMN-06-1892, 2008 WL 7275126, at *3 (D.Md. May 13, 2008); see Fed.R.Civ.P. 8(b)(6) (“If a responsive pleading is not required, an allegation is considered denied or avoided.”). In “determining a motion for judgment on the pleadings, the [CJourt may consider documents incorporated by reference in the pleadings.” Farmer, 393 F.Supp.2d at 386 (internal quotation marks omitted) (citing Parks v. Alteon, Inc., 161 F.Supp.2d 645, 649 n. 1 (M.D.N.C.2001)). However, documents attached to the Answer are part of the pleadings for Rule 12(c) purposes, and may be considered without converting a motion for judgment on the pleadings into a motion for summary judgment, only if the documents are central to the Plaintiffs claim and the authenticity" }, { "docid": "12334384", "title": "", "text": "MEMORANDUM OPINION BULLOCK, District Judge. Plaintiffs in this securities fraud case allege, individually, in Counts 1, 2, and 3 of the complaint, violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1988), and 17 C.P.R. § 240.-10b-5 (Rule 10b-5) (1990), the North Carolina Securities Act, N.C.Gen.Stat. § 78A-56(i) (1990), and common law fraud by Defendant, Joseph E. Gleason. Plaintiffs also claim, individually and derivatively on behalf of Plaintiff Americlean National Corporation, in Counts 4 and 5, breach of fiduciary duty and common law negligence on the part of Defendant Gleason. By memorandum opinion and order dated February 25, 1991, the court reserved ruling on these last two counts and allowed Plaintiffs thirty (30) days to amend their complaint. As to Counts 1 through 3, Defendant denies liability and has pled, as an affirmative defense, acknowledgments signed by Plaintiffs Jadoff, Sealey, and Courtney R. Slawter. Defendant has now moved this court for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) on the ground that the acknowledgments signed by Plaintiffs foreclose any recovery on Counts One, Two, and Three of Plaintiffs’ complaint, namely the violations of the Securities Exchange Act of 1934, the North Carolina Securities Act, and common law fraud. The court finds that the acknowledgments are insufficient to foreclose recovery and will therefore deny Defendant’s motion. In ruling on Defendant’s motion for judgment on the pleadings the court must view the facts presented in the pleadings in the light most favorable to the party against whom the motion is made. Smith v. McDonald, 562 F.Supp. 829, 842 (M.D.N.C.1983) (citing King v. Gemini Food Servs., Inc., 438 F.Supp. 964 [E.D.Va.1976], aff'd, 562 F.2d 297 [4th Cir.1977], cert. denied, 434 U.S. 1065, 98 S.Ct. 1242, 55 L.Ed.2d 766 [1978]), aff'd, 737 F.2d 427 (4th Cir.1984), aff'd, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985). Judgment for the moving party is appropriate only if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Id. When a defendant moves for judgment" }, { "docid": "4156360", "title": "", "text": "the defendant challenges the Court’s subject matter jurisdiction. “It is well established that before a federal court can decide the merits of a claim, the claim must invoke the jurisdiction of the court.” Miller v. Brown, 462 F.3d 312, 316 (4th Cir.2006). Fed.R.Civ.P. 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. See Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D.Md.2003), aff'd, 85 Fed.Appx. 960 (4th Cir.2004). “[A] motion to dismiss under Rule 12(b)(1) is nonwaivable and may be brought at any time-even on appeal-regardless of whether a litigant raised the issue in an initial pleading.” Sucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 548 (4th Cir.2006); see Fed. R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Once a challenge is made to subject matter jurisdiction, the plaintiff bears the burden of proving that the Court has subject matter jurisdiction. See Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir.1999); see also Ferdinand-Davenport v. Children’s Guild, 742 F.Supp.2d 772, 777 (D.Md.2010); Khoury, 268 F.Supp.2d at 606. In ruling on a motion under Fed.R.Civ.P. 12(b)(1), the court “should ‘regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.’ ” Ferdinand-Davenport, 742 F.Supp.2d at 777 (quoting Evans, 166 F.3d at 647); see also Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991), cert. denied, 503 U.S. 984, 112 S.Ct. 1667, 118 L.Ed.2d 388 (1992). The court should grant a Rule 12(b)(1) motion “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans, 166 F.3d at 647. I will construe the motion as a motion to dismiss. II. Defendants argue correctly that, where administrative remedies are available, a plaintiff generally must exhaust such remedies before pursuing a judicial remedy. See Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 801 F.Supp.2d 383, 416" }, { "docid": "3532715", "title": "", "text": "Fire Ins. Co., 162 B.R. 466 (E.D.Va.1994). II. While both parties term their respective motions as ones for summary judgment, in substance both are requesting that the court enter judgment on the pleadings. Under Fed.R.Civ.P. 12(c), made applicable to adversary proceedings in bankruptcy by Fed. R.Bankr.P. 7012(b): After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Judgment on the pleadings is appropriate when the court looks only at the pleadings and determines that there is no issue as to a material fact and only matters of law remain. See Republic Ins. Co. v. Culbertson, 717 F.Supp. 415, 418 (E.D.Va.1989); King v. Gemini Food Services, Inc., 438 F.Supp. 964, 966 (E.D.Va.1976), aff'd on other grounds, 562 F.2d 297 (4th Cir.1977), cert. denied 434 U.S. 1065, 98 S.Ct. 1242, 55 L.Ed.2d 766 (1978); see’also George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir.1996); Lion Oil Co. v. Tosco Corp., 90 F.3d 268, 270 (8th Cir.1996); Hebert Abstract Co. v. Touchstone Properties, Ltd., 914 F.2d 74, 76 (5th Cir.1990). A motion brought under Rule 12(c) is subject to the same standard as a motion to dismiss for failure to state a claim under Rule 12(b)(6). Accordingly, the court must accept all of the well-pleaded allegations in the complaint as true, and draw all reasonable inferences in favor of the non-moving party. See Lion Oil Co., 90 F.3d at 270; Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994); Craigs, Inc. v. General Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir.1993). In the present case, neither party has offered matters outside the pleadings and the parties have stipulated to the relevant facts. Accordingly, the court" }, { "docid": "16281777", "title": "", "text": "(quoting Phoenix Sav. & Loan, Inc. v. Aetna Cas. & Sur. Co., 381 F.2d 245, 249 (4th Cir.1967)). When ruling on a summary judgment motion, the Court views the evidence in the light most favorable to the non-moving party, according that party the “benefit of all reasonable inferences.” Bailey v. Blue Cross & Blue Shield of Virginia, 67 F.3d 53, 56 (4th Cir.1995), cert. denied, 516 U.S. 1159, 116 S.Ct. 1043, 134 L.Ed.2d 190 (1996). The moving party bears the initial burden of establishing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Catawba Indian Tribe of S.C. v. South Carolina, 978 F.2d 1334, 1339 (4th Cir.1992), cert. denied, 507 U.S. 972, 113 S.Ct. 1415, 122 L.Ed.2d 785 (1993). Once the moving party has met this burden, the adverse, or non-moving party must set forth specific facts showing that there is a genuine issue for trial'. Id. In so doing, the adverse party may not rest on mere allegations, denials, or unsupported assertions, but must, through affidavits or otherwise, provide evidence of a genuine dispute. Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12, 91 L.Ed.2d 202; Catawba Indian Tribe, 978 F.2d at 1339. In other words, the non-moving party must show “more than ... some metaphysical doubt as to the material facts,” for the mere existence of a scintilla of evidence in support of his position is insufficient to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Catawba Indian Tribe, 978 F.2d at 1339. B. Proof Scheme Courts have established two proof schemes for cases of discriminatory discharge based on disability, depending on whether there is direct evidence of discrimination. See e.g. Dobson v. Central Carolina Bank and Trust Co., 240 F.Supp.2d 516 (M.D.N.C. 2003) (citing Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 257 (4th Cir.2001)). In the present case there is some evidence of direct discrimination, namely District Manager McCray’s alleged statements made in reference to Ms." }, { "docid": "12334385", "title": "", "text": "signed by Plaintiffs foreclose any recovery on Counts One, Two, and Three of Plaintiffs’ complaint, namely the violations of the Securities Exchange Act of 1934, the North Carolina Securities Act, and common law fraud. The court finds that the acknowledgments are insufficient to foreclose recovery and will therefore deny Defendant’s motion. In ruling on Defendant’s motion for judgment on the pleadings the court must view the facts presented in the pleadings in the light most favorable to the party against whom the motion is made. Smith v. McDonald, 562 F.Supp. 829, 842 (M.D.N.C.1983) (citing King v. Gemini Food Servs., Inc., 438 F.Supp. 964 [E.D.Va.1976], aff'd, 562 F.2d 297 [4th Cir.1977], cert. denied, 434 U.S. 1065, 98 S.Ct. 1242, 55 L.Ed.2d 766 [1978]), aff'd, 737 F.2d 427 (4th Cir.1984), aff'd, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985). Judgment for the moving party is appropriate only if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Id. When a defendant moves for judgment on the pleadings, the fact allegations of the complaint are taken as true, but those of the answer are taken as true only where and to the extent they have not been denied or do not conflict with the complaint. Parker v. DeKalb Chrysler Plym outh, 459 F.Supp. 184, 187 (N.D.Ga.1978), aff'd, 673 F.2d 1178 (11th Cir.1982). See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1368 (1990). For the purposes of this motion Defendant cannot rely on allegations of fact contained only in the answer, including affirmative defenses, which contradict Plaintiffs’ complaint. Plaintiffs were not required to reply to Defendant’s answer, and all allegations in the answer are deemed denied. Fed. R.Civ.P. 8(d), 7(a). Therefore Defendant cannot rely on the acknowledgments to support his motion because their existence is deemed disputed. Although the existence of the acknowledgments is not disputed by Plaintiffs in their brief in response to Defendant’s motion, and is essentially admitted, their existence is not admitted on the face of the complaint and cannot be considered on a" }, { "docid": "3532716", "title": "", "text": "King v. Gemini Food Services, Inc., 438 F.Supp. 964, 966 (E.D.Va.1976), aff'd on other grounds, 562 F.2d 297 (4th Cir.1977), cert. denied 434 U.S. 1065, 98 S.Ct. 1242, 55 L.Ed.2d 766 (1978); see’also George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir.1996); Lion Oil Co. v. Tosco Corp., 90 F.3d 268, 270 (8th Cir.1996); Hebert Abstract Co. v. Touchstone Properties, Ltd., 914 F.2d 74, 76 (5th Cir.1990). A motion brought under Rule 12(c) is subject to the same standard as a motion to dismiss for failure to state a claim under Rule 12(b)(6). Accordingly, the court must accept all of the well-pleaded allegations in the complaint as true, and draw all reasonable inferences in favor of the non-moving party. See Lion Oil Co., 90 F.3d at 270; Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994); Craigs, Inc. v. General Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir.1993). In the present case, neither party has offered matters outside the pleadings and the parties have stipulated to the relevant facts. Accordingly, the court treats the parties’ motions as requesting judgment on the pleadings under Fed.R.Civ.P. 12(c). III. Under § 727(b), Bankruptcy Code, a discharge in a chapter 7 case discharges the debtor from liability for “all debts that arose before the date of the order for relief.” Certain debts, however, are excepted from the discharge. § 523(a), Bankruptcy Code. Relevant to the present controversy, § 523(a)(16) excepts from discharge debts- for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtor’s interest in a dwelling unit that has condominium ownership or in a share of a cooperative housing corporation, but only if such fee or assessment is payable for a period during which— (A) the debtor physically occupied a dwelling unit in the condominium or cooperative project; or (B) the debtor rented the dwelling unit to a tenant and received payments from the tenant for such period, but nothing in this paragraph shall except from discharge the debt of a debtor for a membership association" }, { "docid": "15353109", "title": "", "text": "individually. It would be a tremendous waste of judicial resources to force Plaintiff Led-ford to pursue her case against Barnett in state court when the parties are now on the eve of trial. Discovery has been completed, the issue is ready for disposition and there are no novel or complex issues of state law. Ward v. Eli Lilly & Co., 173 F.3d 853 (table), 1999 WL 150768 *2 (4th Cir.1999); Connelly v. General Medical Corp., 880 F.Supp. 1100, 1118 (E.D.Va.1995). V. ORDER IT IS, THEREFORE, ORDERED that the motion of Defendant MGM for summary judgment is hereby DENIED; and IT IS FURTHER ORDERED that the motion of Defendant Barnett for summary judgment is hereby GRANTED in part and DENIED in part and the claim of Plaintiff Ledford against Barnett for negligent and intentional infliction of emotional distress remains for trial and the claims of the Plaintiffs against Barnett for negligent hiring and retention are hereby DISMISSED. MEMORANDUM AND RECOMMENDATION COGBURN, United States Magistrate Judge. THIS MATTER is before the court upon defendant Franklin Barnett’s Motion for Judgment on the Pleadings. Having considered that motion carefully, reviewed the pleadings, and conducted a hearing, the undersigned enters the following findings, conclusions, and recommendation. FINDINGS AND CONCLUSIONS I. Standard Applicable to Motions for Judgment on the Pleadings A motion for judgment on the pleadings is appropriate where ultimate facts are not in dispute. A.S. Abell Co. v. Baltimore Typographical Union, 338 F.2d 190, 193 (4th Cir.1964). Under Rule 12(c), Federal Rules of Civil Procedure, judgment on the pleadings should be entered where it is apparent that there are no issues of material fact and that only questions of law exist. Moreno v. University of Maryland, 420 F.Supp. 541 (D.Md.1976), aff'd, 556 F.2d 573 (4th Cir.1977). When there are no factual issues, judgment on the pleadings should be granted where the moving party clearly is entitled to the judgment it seeks as a matter of law. Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C.1991). II. Background As to Defendant Barnett, the factual background of this case follows a fact pattern common to recent Title" }, { "docid": "19493652", "title": "", "text": ", 129 F.Supp.3d 281, 308 (M.D.N.C. 2015). State Prosecutors later moved for judgment on the pleadings, and the Court entered an Order that denied that motion. Capital Associated Indus., Inc. v. Cooper , No. 1:15CV83, 2016 WL 6775484, at *2 (M.D.N.C. June 23, 2016). Each Party has now moved for summary judgment. (ECF Nos. 100, 103, 112.) II. LEGAL STANDARD Summary judgment is appropriate when \"the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.\" Fed. R. Civ. P. 56(a). A dispute is \"genuine\" if the evidence would permit a reasonable jury to find for the nonmoving party, and \"[a] fact is material if it might affect the outcome\" of the litigation. Jacobs v. N.C. Admin. Office of the Courts , 780 F.3d 562, 568 (4th Cir. 2015) (quotations omitted). The role of the court is not \"to weigh the evidence and determine the truth of the matter\" but rather \"to determine whether there is a genuine issue for trial.\" Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). \"If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.\" Id. at 249-50, 106 S.Ct. 2505 (citations omitted). When reviewing a motion for summary judgment, the court must \"resolve all factual disputes and any competing, rational inferences in the light most favorable\" to the nonmoving party. Rossignol v. Voorhaar , 316 F.3d 516, 523 (4th Cir. 2003). When, as here, a court has before it cross-motions for summary judgment, \"the court must review each motion separately on its own merits\" to determine whether each party is entitled to judgment as a matter of law. Id. III. DISCUSSION State Prosecutors have moved for summary judgment on jurisdictional grounds and on CAI's right of association claim only. (ECF No. 100.) CAI and the State Bar have each moved for summary judgment on each of the six claims brought by CAI. (ECF Nos. 103, 112.) As State Prosecutors raise the threshold issue of whether" }, { "docid": "16837712", "title": "", "text": "Company, L.P., and AT & T Communications of Maryland, Inc., both of which have filed their own lawsuits against the County seeking to overturn the telecommunications franchise law. A hearing on the present motion was held before this court on April 16, 1999. Counsel for all parties, including Sprint and AT & T, were present and addressed the court on the matters now pending. STANDARD OF REVIEW The standard for dismissing a complaint for failure to state a claim upon which relief can be granted is a high one. “A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992). Consequently, the County’s motion to dismiss under Rule 12(b)(6) may not be granted unless, viewing the complaint in the light most favorable to Bell Atlantic and accepting Bell Atlantic’s factual allegations, as well as all reasonable inferences therefrom, as true, “it appears beyond doubt that [Bell Atlantic] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Id. The standard for granting judgment on the pleadings under Rule 12(c) is similar to the standard for granting summary judgment under Rule 56(c): whether, “when viewed in the light most favorable to the party against whom the motion is made [here, the County], no genuine issues of material fact remain and the case can be decided as a matter of law.” King v. Gemini Food. Servs., Inc., 438 F.Supp. 964, 966 (E.D.Va.1976), aff'd, 562 F.2d 297 (4th Cir.Í977); see also Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir.1988) (“Under Rule 12(c), judgment will not be granted unless the mov-ant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law”) (internal quotation marks and citation omitted). Because the parties do not disagree about any material facts involved in this case and the outcome depends" }, { "docid": "18179875", "title": "", "text": "or ridicule,” or tended “to shock, insult, or offend the majority of the consuming public.” When, as in this case, there exists a material dispute of fact, such a determination goes beyond the scope of a motion for judgment on the pleadings, and therefore judgment as a matter of law is not appropriate at this stage of the proceedings. See Smith, 562 F.Supp. at 842, aff'd, 737 F.2d 427 (4th Cir.1984), aff'd, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985); Med-Trans Corp., 581 F.Supp.2d at 728. Therefore, Defendant’s Motion for Judgment on the Pleadings will be DENIED. IV. Conclusion For the reasons set forth herein, the Court finds that a judgment on the pleadings would be premature at this time and is not warranted given the allegations of Plaintiffs Complaint. IT IS THEREFORE ORDERED that Defendant’s Motion for Judgment on the Pleadings [Doc. # 11] is DENIED. . The Court notes that even if the alternative Motion to Dismiss were before the Court, the Court would reach the same result based upon a finding that, at this stage of the proceedings, Plaintiff has alleged a plausible claim of breach of contract based upon his allegation of unreasonable conduct by Hanesbrands. . In an unpublished decision, Nader v. ABC Television, Inc., the Second Circuit found that \"[m]orals clauses have long been held valid and enforceable ... [and] [t]here is no indication that New York departs from this generally applicable law on this point.” Nader v. ABC Television, Inc., 150 Fed.Appx. 54, 56 (2d Cir.2005)." }, { "docid": "17841223", "title": "", "text": "judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 15. Fed.R.Civ.P. 12(c). The party making a motion for failure to state a claim upon which relief can be granted after the close of the pleadings may style the motion as one for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Further, the standards of review under 12(c) and Rule 12(b)(6) are virtually identical. Rhodes, Inc. v. Morrow, 937 F.Supp. 1202, 1208 (M.D.N.C.1996). When a party moves for judgment on the pleadings pursuant to 12(c), the factual allegations of the complaint are taken as true, but those of the-answer are taken as true only where and to the extent they have not been denied or do not conflict with the complaint. Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C.1991). In order to grant such a motion, the court must find beyond a doubt that the nonmoving party could prove no set of facts in support of her claim which would entitle her to relief. Bruce v. Riddle, 631 F.2d 272, 274 (4th Cir.1980). III. DISCUSSION Defendant has moved to dismiss plaintiffs complaint on the grounds that plaintiff has failed to comply with the procedural prerequisites set forth in 42 U.S.C. §§ 2000e-5(e) and 2000e — 5(f)(1). Defendant argues that plaintiff has failed to present a prima facie case of race discrimination or retaliation. Defendant further contends that plaintiffs claims are moot and that her requested relief exceeds the scope of the remedy available to her under 42 U.S .C. § 2000e-5(g) and is not supported by the record. Plaintiff filed a document with the court entitled “Response to Motion for Summary Judgment” with numerous attachments. Recognizing the deference due plaintiff as a pro se litigant, the court nevertheless will not consider the documentation attached to her “Response to Motion for Summary Judgment.” This matter is" }, { "docid": "18179863", "title": "", "text": "F.R.D. 330, 331 (M.D.N.C.1991). For the “purposes of this motion Defendant cannot rely on allegations of fact contained only in the [AJnswer, including affirmative defenses, which contradict [the] [CJomplaint” because Plaintiff was “not required to reply to Defendant’s [AJnswer, and all allegations in the [AJnswer are deemed denied.” Jadoff 140 F.R.D. at 332; Lefkoe v. Jos. A. Bank Clothiers, No. WMN-06-1892, 2008 WL 7275126, at *3 (D.Md. May 13, 2008); see Fed.R.Civ.P. 8(b)(6) (“If a responsive pleading is not required, an allegation is considered denied or avoided.”). In “determining a motion for judgment on the pleadings, the [CJourt may consider documents incorporated by reference in the pleadings.” Farmer, 393 F.Supp.2d at 386 (internal quotation marks omitted) (citing Parks v. Alteon, Inc., 161 F.Supp.2d 645, 649 n. 1 (M.D.N.C.2001)). However, documents attached to the Answer are part of the pleadings for Rule 12(c) purposes, and may be considered without converting a motion for judgment on the pleadings into a motion for summary judgment, only if the documents are central to the Plaintiffs claim and the authenticity is not challenged. Horsley v. Feldt, 304 F.3d 1125, 1134-35 (11th Cir.2002) (finding that the “incorporation by reference doctrine ... under which a document attached to a motion to dismiss may be considered by the court without converting the motion into one for summary judgment only if the attachment is: (1) central to the plaintiffs claim; and (2) undisputed” applies “for Rule 12(c) purposes to documents attached to answers”); Lefkoe, 2008 WL 7275126, at *4; Farmer, 393 F.Supp.2d at 386. In addition, judgment on the pleadings is only appropriate when, taking all of the non-moving party’s factual allegations as true, no genuine issues of material fact remain and the case can be determined as a matter of law. Smith v. McDonald, 562 F.Supp. 829, 842 (M.D.N.C.1983), aff'd, 737 F.2d 427 (4th Cir.1984), aff'd, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985); Med-Trans Corp. v. Benton, 581 F.Supp.2d 721, 728 (E.D.N.C.2008). III. Analysis Under New York law, in order to state a claim for breach of contract, the Complaint must allege: (1) the existence" }, { "docid": "17841222", "title": "", "text": "The defense argues that, with regard to those issues in the complaint which were not involved in the two EEOC charges, plaintiff failed to comply with procedural prerequisites for bringing a Title VII discrimination claim in that she did not first file EEOC charges regarding the alleged acts as required by 42 U.S.C. § 2000e-5(f)(l). The defense further argues that, with regard to the issues contained in the two EEOC charges filed by plaintiff, plaintiff has failed to comply with procedural prerequisites for filing EEOC charges because she first failed to commence proceedings under State or local law as required by 42 U.S.C. § 2000e-5(c). Finally, the defense argues that the allegations contained in plaintiffs complaint are either moot or fail to allege a prima facie ease of race discrimination or retaliation. II. STANDARD Rule 12(c) of the Federal Rules of Civil Procedure provides as follows: After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 15. Fed.R.Civ.P. 12(c). The party making a motion for failure to state a claim upon which relief can be granted after the close of the pleadings may style the motion as one for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Further, the standards of review under 12(c) and Rule 12(b)(6) are virtually identical. Rhodes, Inc. v. Morrow, 937 F.Supp. 1202, 1208 (M.D.N.C.1996). When a party moves for judgment on the pleadings pursuant to 12(c), the factual allegations of the complaint are taken as true, but those of the-answer are taken as true only where and to the extent they have not been denied or do not conflict with the complaint. Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C.1991). In" }, { "docid": "15353110", "title": "", "text": "for Judgment on the Pleadings. Having considered that motion carefully, reviewed the pleadings, and conducted a hearing, the undersigned enters the following findings, conclusions, and recommendation. FINDINGS AND CONCLUSIONS I. Standard Applicable to Motions for Judgment on the Pleadings A motion for judgment on the pleadings is appropriate where ultimate facts are not in dispute. A.S. Abell Co. v. Baltimore Typographical Union, 338 F.2d 190, 193 (4th Cir.1964). Under Rule 12(c), Federal Rules of Civil Procedure, judgment on the pleadings should be entered where it is apparent that there are no issues of material fact and that only questions of law exist. Moreno v. University of Maryland, 420 F.Supp. 541 (D.Md.1976), aff'd, 556 F.2d 573 (4th Cir.1977). When there are no factual issues, judgment on the pleadings should be granted where the moving party clearly is entitled to the judgment it seeks as a matter of law. Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C.1991). II. Background As to Defendant Barnett, the factual background of this case follows a fact pattern common to recent Title VII cases. Plaintiffs contend that a supervisory employee of the corporate defendant not only turned a blind eye towards sexual harassment of female employees by male employees in the industrial workplace, but encouraged such conduct by berating employees who complained about it. In addition, it is the contention of at least one plaintiff that Defendant Barnett engaged in outrageous conduct, which included the nonconsensual touching of the private parts of females whom he supervised. Defendant Barnett has moved to dismiss the Title VII claim against him under recent precedent and has also moved to dismiss the supplemental state-law claims. III.Discussion A. Title VII Claim Against a Supervisory Employee The court agrees with Defendant Barnett that the reasoning of the Court of Appeals for the Fourth Circuit in Lissau v. Southern Food Service, Inc., 159 F.3d 177 (4th Cir. October 28, 1998), compels this court to recommend dismissal of the Title VII claim brought against him. Clearly, a supervisory employee is not an “employer” under Lissau. B. Supplemental Claims Defendant Barnett has also requested dismissal of" }, { "docid": "16837713", "title": "", "text": "beyond doubt that [Bell Atlantic] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Id. The standard for granting judgment on the pleadings under Rule 12(c) is similar to the standard for granting summary judgment under Rule 56(c): whether, “when viewed in the light most favorable to the party against whom the motion is made [here, the County], no genuine issues of material fact remain and the case can be decided as a matter of law.” King v. Gemini Food. Servs., Inc., 438 F.Supp. 964, 966 (E.D.Va.1976), aff'd, 562 F.2d 297 (4th Cir.Í977); see also Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir.1988) (“Under Rule 12(c), judgment will not be granted unless the mov-ant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law”) (internal quotation marks and citation omitted). Because the parties do not disagree about any material facts involved in this case and the outcome depends upon pure questions of law, judgment on the pleadings is appropriate. ANALYSIS In keeping with the court’s “duty to avoid deciding constitutional questions presented unless essential to a proper disposition of a case,” Harmon v. Brucker, 355 U.S. 579, 581, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958), the court turns first to Bell Atlantic’s claim that the County’s telecommunications franchise law violates the Federal Telecommunications Act of 1996 (“FTA”). See Compl. ¶¶ 54-62 (Count V). It is a “familiar and well-established principle” that the Supremacy Clause, U.S. Const. art. VI, cl. 2, invalidates all state and local laws that “interfere with, or are contrary to,” federal law. Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (citation omitted). Local laws may be invalidated under the Supremacy Clause in several different ways. Id. at 713, 105 S.Ct. 2371. Relevant for purposes of this case, a local law “is nullified to the extent that it actually conflicts with federal law” by “standing] as an obstacle to the accomplishment" }, { "docid": "18179864", "title": "", "text": "is not challenged. Horsley v. Feldt, 304 F.3d 1125, 1134-35 (11th Cir.2002) (finding that the “incorporation by reference doctrine ... under which a document attached to a motion to dismiss may be considered by the court without converting the motion into one for summary judgment only if the attachment is: (1) central to the plaintiffs claim; and (2) undisputed” applies “for Rule 12(c) purposes to documents attached to answers”); Lefkoe, 2008 WL 7275126, at *4; Farmer, 393 F.Supp.2d at 386. In addition, judgment on the pleadings is only appropriate when, taking all of the non-moving party’s factual allegations as true, no genuine issues of material fact remain and the case can be determined as a matter of law. Smith v. McDonald, 562 F.Supp. 829, 842 (M.D.N.C.1983), aff'd, 737 F.2d 427 (4th Cir.1984), aff'd, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985); Med-Trans Corp. v. Benton, 581 F.Supp.2d 721, 728 (E.D.N.C.2008). III. Analysis Under New York law, in order to state a claim for breach of contract, the Complaint must allege: (1) the existence of a contract, (2) performance by the party seeking recovery, (3) non-performance by the other party, and (4) damages attributable to the breach. RCN Telecom Servs., Inc. v. 202 Centre St. Realty LLC, 156 Fed.Appx. 349, 350-51 (2d Cir.2005) (citing Marks v. New York Univ., 61 F.Supp.2d 81, 88 (S.D.N.Y.1999)). With regard to the first element, the parties in the present case do not dispute the existence of a valid and enforceable contract. As to the second element, that is, whether Plaintiff performed his duties under the Talent Agreement and Extension, the Court finds that Plaintiff has alleged enough facts to sufficiently plead this element, in that, Plaintiff has alleged that he was paid in full for the initial term of the contract, that the term of the contract was extended, in part, because of his efforts to promote the Champion brand, and that he remained available to perform his duties under the Talent Agreement and Extension during the extension term even after Hanesbrands purported to terminate the Talent Agreement and Extension, as alleged in" }, { "docid": "3797302", "title": "", "text": "IV. Summary Judgment Finally, Movants request, to the extent the Court looks beyond the pleadings, that the Court treat the Motions as motions for summary judgment. Fed.R.Civ.P. 56(c), made applicable to this adversary proceeding by Fed. R. Bankr.P. 7056, provides that summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Summary judgment is a favored mechanism “to secure the ‘just, speedy and inexpensive determination’ of a case.” Thompson Everett, Inc. v. Nat’l Cable Adven, L.P., 57 F.3d 1317, 1322-23 (4th Cir.1995) (quoting Fed.R.Civ.P. 1). However, summary judgment is generally appropriate only after adequate time for discovery. Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.1996). It is inappropriate to grant summary judgment unless Plaintiff, as the nonmoving party, is provided an opportunity to discover information that is essential to his opposition. See id. As the Scheduling Order was entered a few weeks prior to the hearing on the Motions and the discovery period has not yet expired, it is premature to treat Movants’ Motions as motions for summary judgment and therefore, to the extent that the Motions are based on Fed. R.Civ.P. 56, they are denied with leave to re-file upon completion of discovery. See Gay, 761 F.2d at 177-178. V. Leave to Amend Although the Court finds that several of Plaintiffs claims are defective under Fed.R.Civ.P. 9(b), the Court declines to dismiss these claims with prejudice. Rule 9(b) must be read in light of the liberal amendment provisions contained in Fed.R.Civ.P. 15. See Madison River Management Co. v. Business Management Software Corp. 351 F.Supp.2d 436, 447-448 (M.D.N.C.2005). Rule 15(a) gives courts the discretion to allow amendment of pleadings when justice so requires. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). “Courts reading these two rules together have, in most instances, granted leave to amend" }, { "docid": "18516463", "title": "", "text": "for summary judgment under Rule 56.” Fed. R. Civ.P. 12(d); see also Strong-Fischer, 554 F.Supp.2d at 22; Morris v. Lowe’s Home Centers, Inc., No. 10-cv388, 2011 WL 2417046, at *2-3 (M.D.N.C. June 13, 2011). Since matters beyond the pleadings will be considered here, the defendant’s motion will be treated as one for summary judgment. Pursuant to Federal Rule of Civil Procedure 56, the Court will grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law” based upon the pleadings, depositions, and affidavits and other factual materials in the record. Fed.R.Civ.P. 56(a), (c); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). The Court “need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). The Court must view all inferences in a light most favorable to the non-moving party. Tao, 27 F.3d at 638 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The burden is on the moving party to demonstrate that there is an “absence of a genuine issue of material fact” in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B.Analysis To bring a civil action under Title VII, the plaintiff must file the complaint “within 90 days of receipt of the final action on an individual or class complaint if no appeal has been filed.” 29 C.F.R. § 1614.407(a); see McAlister v. Potter, 733 F.Supp.2d 134, 143 (D.D.C.2010) (“ ‘[Wjithin 90 days of receipt of notice of final action taken by a department, agency ... an employee or applicant for employment, if aggrieved by the final disposition of his complaint ... may file a civil action.’ ”) (quoting 42 U.S.C. § 2000e-16(c)). The ninety-day period begins when the plaintiffs counsel receives notice of the agency’s decision. Harris v. Bodman, 538 F.Supp.2d 78, 80 (D.D.C.2008) aff'd, No. 08-5091, 2008 WL 5532102 (D.C.Cir. Aug. 27, 2008). A court may dismiss a suit for" }, { "docid": "1917918", "title": "", "text": "Clark, No. CV91-PT-00975-S (N.D.Ala. Jan. 14, 1992); Saltarikos v. Charter Mfg. Co., 782 F.Supp. 420 (E.D.Wis.1992). . See Gersman v. Group Health Ass’n, 931 F.2d 1565 (D.C.Cir.1991), vacated and remanded, — U.S.-, 112 S.Ct. 960, 117 L.Ed.2d 127 (1992) (see text for further discussion); Holland v. First Virginia Banks, Inc., 744 F.Supp. 722 (E.D.Va.1990), rev’d without opinion, 937 F.2d 603 (4th Cir.1991), vacated and remanded, — U.S.-, 112 S.Ct. 1152, 117 L.Ed.2d 401 (1992) (Supreme Court vacated judgment and remanded to the Fourth Circuit for further consideration in light of 1991 Act). The Holland case was reopened in the Fourth Circuit on February 28, 1992. At the time of this writing, a briefing schedule and oral argument date have not yet been set. . The Gersman case is scheduled for oral argument before the D.C. Circuit on May 12, 1992. . In Watkins v. Bessemer State Technical College, the court also recognized the Court’s implication of retroactivity in Gersman. 782 F.Supp. 581, 586. . Because the court has considered matters outside the pleadings in reviewing Count II of Plaintiffs Complaint, the motion shall be treated as one for summary judgment and disposed of as provided in Fed.R.Civ.P. 56. See Fed. R.Civ.P. 12(b); infra note 18. . Because the court has considered matters outside the pleadings in reviewing Count III of Plaintiffs Complaint, the motion shall be treated as one for summary judgment and disposed of as provided in Fed.R.Civ.P. 56. See Fed. R.Civ.P. 12(b). Summary judgment should be granted where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as-a matter of law. Fed.R.Civ.P. 56(c). In determining whether this showing has been made, the court must assess the evidence in the light most favorable to the party opposing the motion. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). When the non-moving party will bear the burden of proof at trial, and the party seeking summary judgment has made a prima facie demonstration that the non-moving party cannot prevail, then the non-moving party must come forth with evidence" } ]

[ { "docid": "907143", "title": "", "text": "effectively control the already difficult problem of illegal entries into this country would be weakened * * * Of course the defendant is entitled to have tried anew each time the facts as to his entry and its justification on other grounds (see 8 U.S.C.A. § 1326) as well as any change of nationality status since the prior adjudication. And it is equally beyond question that the accused is always entitled to have any prior proceedings carefully examined in order to determine surely whether a prior adjudication of alien-age was made after a full and adequate hearing, and was essential to a determination of the case. [394 F.2d at 787-788.] We find such reasoning to be persuasive. See Annot., 9 A.L.R.3d 203 (1966). Defendant attempts to distinguish Pena-Cabanillas v. United States, supra, from the instant case by pointing out that the earlier finding of alienage in Pena-Cabanillas did not result from a plea of guilty but from a full adversary proceeding. Defendant contends that by the plea of guilty to the 1967 charge, the issue of his alienage was not drawn into controversy by a full presentation of the case. The general rule is that collateral estoppel, where applicable, applies equally whether the previous criminal conviction was based on a jury verdict or a plea of guilty. Brazzell v. Adams, 493 F.2d 489, 490 (5th Cir. 1974); Hyslop v. United States, 261 F.2d 786, 790 (8th Cir. 1958). The Supreme Court recognized the use of collateral estoppel in criminal cases in Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970) where it said: The federal decisions have made clear that the rule of collateral estop-pel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. See Hoag v. New Jersey, 356 U.S. 464, 470-471, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958). Federal Rule of Criminal Procedure 11 protects the defendant from an improvident plea of guilty. Rule 11 requires the court before accepting a plea of guilty to satisfy" } ]

[ { "docid": "9715225", "title": "", "text": "Kinney guilty of all of the possession and importation counts. According to appellants, it follows that the jury could not have rationally acquitted them on the possession counts un less it rejected the government’s contention that appellants made the telephone calls to knowingly assist the smugglers to import and possess the marijuana. Appellants argue that because the government is required to prove that they made the telephone calls, itemized in the superceding indictment, to knowingly facilitate the importation of marijuana, and because the jury necessarily resolved this crucial element of the government’s case adversely to the government in the first trial, the government is precluded from trying appellants on those charges. The Supreme Court in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), held that collateral es-toppel is a part of the constitution’s guarantee against double jeopardy. In this context, collateral estoppel means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. at 1194. When applicable, collateral estoppel protects an accused in a criminal as well as a civil proceeding and extends to prevent redeter-mination of evidentiary facts as well as ultimate facts. United States v. Lee, 622 F.2d 787 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981); United States v. Gonzalez, 548 F.2d 1185 (5th Cir.1977). Collateral estoppel may affect a later criminal prosecution in two ways: “(1) it may completely bar a subsequent prosecution; or (2) although the subsequent prosecution may proceed, it may operate to bar the introduction or argumentation of certain facts necessarily established in a prior proceeding.” United States v. Caucci, 635 F.2d 441, 448 (5th Cir.), cert. denied, 454 U.S. 831, 102 S.Ct. 128, 70 L.Ed.2d 108 (1981). We are only concerned in this case with whether the prosecution is barred. Collateral estoppel bars relitigation only of those facts necessarily determined in the first trial. “When a fact is not necessarily determined in a former trial," }, { "docid": "3023337", "title": "", "text": "appeals had “found sufficient evidence to conclude” that Kandiel was an alien. “[A] prior criminal conviction,” the Supreme Court has stated, “may work an estoppel in favor of the Government in a subsequent civil proceeding.” Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568, 71 S.Ct. 408, 414, 95 L.Ed. 534 (1951). Such estoppel extends only to questions “distinctly put in issue and directly determined” in the criminal prosecution.... In the case of a criminal conviction based on a jury verdict of guilty, issues which were essential to the verdict must be regarded as having been determined by the judgment [PJlaintiffs are entitled to introduce the prior judgment to establish prima facie all matters of fact and law necessarily decided by the conviction and the verdict on which it was based. Id. at 569, 71 S.Ct. at 414 (citations omitted); accord Brazzell v. Adams, 493 F.2d 489, 490 (5th Cir.1974) (“The general principle of collateral estoppel is that ‘a fact decided in an earlier suit is conclusively established between ... the parties and their privies, provided it was necessary to the result in the first suit.’ ”). When the issue of a defendant’s alienage was necessarily fully litigated in a criminal case, courts have applied the doctrine of collateral estoppel to the issue in a later criminal case. Pena-Cabanillas v. United States, 394 F.2d 785, 787 (9th Cir.1968) (finding of fact that defendant is alien necessary for prior conviction of violation of 18 U.S.C. § 911 — falsely and willfully representing himself to be citizen of United States). A defendant’s pleading guilty in an earlier case to a violation of 8 U.S.C. § 1326 — unlawfully re-entering the United States after deportation — entitled the district court in a later criminal case to invoke the doctrine on the issue of the defendant’s alienage, a judicial determination of which, it declared, had previously occurred. Hernandez-Uribe v. United States, 515 F.2d 20, 21 (8th Cir.1975), cert. denied, 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647 (1976). We must determine, however, whether a finding of alienage in a criminal case" }, { "docid": "23102592", "title": "", "text": "against the defendant. Judges have stressed in dicta that unlike in civil cases, the collateral estoppel principle should not be applied to both parties in criminal cases. In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court held that because the jury at the first trial did not find the defendant to be one of the robbers, collateral estoppel barred the government from arguing at the second trial that he was one of the robbers. Id. at 445, 90 S.Ct. at 1195. Though disagreeing with the Court’s holding, Chief Justice Burger stated that “[if the defendant] had been convicted at the first trial, presumably no court would then hold that he was thereby foreclosed from litigating the identification issue at the second trial.” Id. at 465, 90 S.Ct. at 1205 (Burger, C.J., dissenting). Before Ashe v. Swenson and in equally unequivocal terms, we stated in dicta that “[a]n accused is constitutionally entitled to a trial de novo of the facts alleged and offered in support of each offense charged against him and to a jury’s independent finding with respect thereto.” United States v. De Angelo, 138 F.2d 466, 468 (3d Cir.1943), cited in Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 239, 92 L.Ed. 180 (1948). More recently, a district court in this Circuit reiterated this theme: “An accused is always constitutionally entitled to a trial de novo of the facts alleged ... and collateral estoppel is available as a defense even though it can never be raised offensively by the prosecution.” United States v. Bruno, 333 F.Supp. 570, 576 (E.D.Pa.1971) (emphasis added). See also United States v. Carlisi, 32 F.Supp. 479, 482 (E.D.N.Y.1940) (“A prior adjudication with respect to an element of a subsequently tried offense is not binding upon the accused. This is so because the defendant, charged with crime, always has the right to have the jury or the triers of the facts determine anew every element of guilt.”). These statements embody the proposition that the constitutional right to a jury trial bars application of collateral estoppel" }, { "docid": "22823302", "title": "", "text": "had not been established, Console’s reprosecution under RICO based on these predicate acts would not have violated his double jeopardy rights. The double jeopardy clause protects against relitigation of an issue necessarily determined in the defendant’s favor by a valid and final judgment. Ashe v. Swenson, 397 U.S. 436, 442-45, 90 S.Ct. 1189, 1193-94, 25 L.Ed.2d 469 (1970). In Ashe, 397 U.S. at 442, 90 S.Ct. at 1193-94, the Supreme Court held that in criminal cases, collateral estoppel “is part of the Fifth Amendment’s guarantee against double jeopardy.” Ashe involved a defendant who was prosecuted for the robbery of one member of a poker game, acquitted, and subsequently prosecuted for the robbery of another member of the poker game. Id. at 438-39, 90 S.Ct. at 1191-92. “The single rationally conceivable issue in dispute before the jury [at the first trial] was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not.” Id. at 445, 90 S.Ct. at 1195. Therefore, the Court concluded that even though the second prosecution involved a different “offense,” it violated the double jeopardy clause. Id. at 445-47, 90 S.Ct. at 1195-96. Accordingly, Ashe applies when the government “has lost an earlier prosecution involving the same facts.” United States v. Dixon, — U.S. at -, 113 S.Ct. at 2860 (emphasis in original). Console argues that the “district court’s unjustified refusal to allow the first jury to separately consider each predicate act ... prevented Console from reaping any benefit from the doctrine of collateral estoppel.” Console Br. at 63. We disagree. Although the principles of estoppel may apply to the retrial of a “hung” count, United States v. Bailin, 977 F.2d 270, 277 (7th Cir.1992), they apply only when “an issue of ultimate fact has ... been determined [in defendant’s favor] by a valid and final judgment.” Ashe, 397 U.S. at 443, 90 S.Ct. at 1194. por example, in United States v. Bailin, the Court of Appeals for the Seventh Circuit held that “[i]n a retrial of a mistried count in a multicount indictment, ... direct estoppel bar[s]" }, { "docid": "14839709", "title": "", "text": "and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions. United States v. Jones, 614 F.2d 80, 82 (5th Cir.1980). The district court, then, did not err in refusing to entertain Kalish’s § 2255 petition. II. The Jasper Farm Guilty Plea and Conviction Kalish challenges his conviction for the offenses of importing, possessing with an intent to distribute, and aiding and abetting the importing and possession of the 48,000 pounds of marijuana in the Jasper Farm episode. Kalish argues that the doctrine of collateral estoppel precluded this indictment and prosecution, since the EL COBRE jury had already acquitted him of charges of membership in a “larger conspiracy.” The crux of Kalish’s argument is that the government did not prove that he actually imported and possessed marijuana, but rather only attempted to prove that he aided and abetted the importation and possession of marijuana, and that the only proof offered of his aiding and abetting was evidence of his participation in the same conspiracy that the EL COBRE jury rejected. Collateral estoppel is part of the constitutional guarantee against double jeopardy. It means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Collateral estoppel precludes a later prosecution only if the jury could not rationally have based its verdict on an issue other than the one the defendant seeks to foreclose. United States v. Lee, 622 F.2d 787, 790 (5th Cir.1980). “When a ‘fact is not necessarily determined in a former trial, the possibility that it may have been does not prevent re-examination of that issue.’ ” Id, quoting Adams v. United States, 287 F.2d 701, 705 (5th Cir.1961). Collateral estoppel may operate in two distinct ways. It may completely bar a subsequent prosecution where one of the facts necessarily determined in the former trial is an essential element to the conviction the government" }, { "docid": "23102588", "title": "", "text": "Circuit. United States v. Colacurcio, 514 F.2d 1, 6-7 (9th Cir.1975); Pena-Cabanillas v. United States, 394 F.2d 785, 786-88 (9th Cir.1968); United States v. Rangel-Perez, 179 F.Supp. 619, 626 (S.D.Cal.1959). See also United States v. Bejar-Matrecios, 618 F.2d 81, 83-84 (9th Cir.1980) (guilty plea applied as collateral estoppel). The U.S. Court of Appeals for the Eighth Circuit likewise adopted this rule. See Hernandez-Uribe v. United States, 515 F.2d 20, 21-22 (8th Cir.1975), cert. denied, 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647 (1976). The Massachusetts cases provided no analysis for their holding. In Feldman, the defendant was first charged with drunkenness to which he pleaded guilty. 131 Mass. 588. Subsequently, he was charged with assaulting a police officer with a dangerous weapon. Feldman attempted to introduce evidence to show that he was not drunk at the time of the alleged assault. Id. The court without analysis stated: The conviction and sentence of the defendant for drunkenness was a conclusive adjudication, as between him and the Commonwealth, that he was drunk at the time of his arrest. Id. In another criminal ease the same court justified its application of collateral estoppel against the defendant with only the following sentence: “Upon general principles, the parties being the same, the former judgment must be held to have established all facts which were involved in the issue then tried, and essential to the judgment'rendered upon it.” Evans, 101 Mass, at 27 (1869). These cases provide little or no legal analysis for their holding, and for that reason are not persuasive. Nor do more recent federal cases provide adequate guidance. The Court of Appeals for the Ninth Circuit, after citing the cases where collateral estoppel has been applied in favor of criminal defendants, extended the application of that doctrine against the defendant. See, e.g., Pena-Cabanillas, 394 F.2d at 786-87; Colacurcio, 514 F.2d at 4-5. The court did so without explaining why these cases supported the jump from applying the doctrine for the defendant to against the defendant. Id. Rather than resting on a constitutional mandate such as announced in Ashe v. Swenson, 397 U.S." }, { "docid": "19938300", "title": "", "text": "the collateral estoppel doctrine. Ashe v. Swenson, 397 U.S. 436, 443-44, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. 1189. As traditionally understood, the Double Jeopardy Clause precludes multiple prosecutions and multiple punishments for the same offense. See United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.2005). Ashe, however, limits successive prosecution of defendants, not for the same offenses but for different offenses. After an acquittal, Ashe bars the government from prosecuting defendants on a different charge “if one of the facts necessarily determined in the former trial is an essential element of the subsequent prosecution.” Brackett, 113 F.3d at 1398. Defendants asserting collateral estoppel carry the burden to make this showing. Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (“The Court of Appeals have unanimously placed the burden on the defendant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding”). To determine whether collateral estoppel bars a subsequent criminal prosecution, courts must conduct a two-step analysis. Bolden v. Warden, W. Tenn. High Sec. Facility, 194 F.3d 579, 584 (5th Cir. 1999). “Initially, we must decide which facts necessarily were decided in the first proceeding. Then we must consider whether the facts necessarily decided in the first trial constitute essential elements of the offense in the second trial.” Id. Here, Defendants assert collateral estoppel bars the Government from pursuing all of the current charges against them, except for the conspiracy counts against Hirko and Shelby and the 2001 insider trading counts against Hirko. We engage in this two-step analysis as to each defendant’s claims below. A. Rex Shelby Shelby was acquitted of the four insider trading counts related to his sale of Enron stock in the summer of 2000 (“Summer 2000 Insider Trading Counts”). The jury hung on the conspiracy to commit securities and" }, { "docid": "22895149", "title": "", "text": "count 1 conspiracy- A re-trial following a hung jury generally does not violate the Double Jeopardy Clause because the jury’s failure to reach a verdict does not terminate the original jeopardy. See Yeager v. United States, 557 U.S. 110, 129 S.Ct. 2360, 2366, 174 L.Ed.2d 78 (2009); Richardson v. United States, 468 U.S. 317, 323-26, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). However, the Double Jeopardy Clause also incorporates the collateral estoppel doctrine, which provides that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Collateral estoppel may therefore affect successive criminal prosecutions based on what the jury decided in the first prosecution. United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir.1997). A subsequent prosecution will be completely barred “if one of the facts necessarily determined in the former trial is an essential element of the subsequent prosecution.” Id. For example, in Ashe the defendant was charged with but acquitted of armed robbery of one of six participants in a poker game. Ashe, 397 U.S. at 437-38, 90 S.Ct. 1189. The only contested issue at trial was whether the defendant had been one of the robbers. Id. at 438, 90 S.Ct. 1189. The state re-tried the defendant at a second trial for robbing one of the other poker players, and the jury convicted him. Id. at 439-40, 90 S.Ct. 1189. The Supreme Court held that the conviction was impermissible under the collateral estoppel doctrine because the first jury had necessarily found that the defendant had not been one of the robbers, a fact that the state was precluded from relitigating. Id. at 445, 90 S.Ct. 1189. The collateral estoppel doctrine “bars relitigation only of those facts necessarily determined in the first trial.” Brackett, 113 F.3d at 1398 (internal quotation marks and citation omitted). Because the first jury in Ashe could not have acquitted the defendant without finding that he was not involved in the" }, { "docid": "3851153", "title": "", "text": "S.Ct. 1189, 25 L.Ed.2d 469 (1970). A collateral estoppel determination encompasses three formal steps: (1) we identify the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) we examine the record of the prior case to decide whether the issue was ‘litigated’ in the first case; and (3) we examine the record in the prior proceeding to ascertain whether the issue was necessarily decided in the first case. United States v. Romeo, 114 F.3d 141, 143 (9th Cir.1997) (emphasis omitted). Despite the formal nature of this determination, collateral estoppel is not applied in criminal cases “with the hypertechnical and archaic approach of a 19th century pleading book,” but rather with “realism and rationality.” Ashe, 397 U.S. at 444, 90 S.Ct. 1189; see also id. at 464, 90 S.Ct. 1189(Burger, C.J., dissenting) (“[I]n criminal cases, finality and conservation of private, public and judicial resources are lesser values than in civil litigation.”). At the time of the district court decision, we had held that collateral estoppel could be used offensively against a criminal defendant in the context of illegal reentry prosecutions. See Bejar-Matrecios, 618 F.2d at 83; Pena-Cabanillas v. United States, 394 F.2d 785, 787-88 (9th Cir.1968) (adopting the reasoning of United States v. Rangel-Perez, 179 F.Supp. 619, 625 (S.D.Cal.1959)). Given our precedent at the time of the district court’s decision, the court understandably ruled that Smith was collaterally estopped from contesting his status as an alien on the ground that he had admitted to that status in two of his prior guilty pleas. A number of other circuits disagreed with our rule; they held that collateral estoppel could not be used in a criminal case to prevent a defendant from contesting an element of the offense. See, e.g., United States v. Gallardo-Mendez, 150 F.3d 1240, 1244 (10th Cir.1998) (“[Wjhile ‘wise public policy and judicial efficiency’ may be sufficient reasons to apply collateral estoppel in civil cases, they do not have the same weight and value in criminal cases.”); United States v. Pelullo," }, { "docid": "23102586", "title": "", "text": "that context clearly demonstrate that Pe-lullo did state res judicata (or collateral es-toppel) as a ground for his objection, and the district court fully understood the nature of the objection. This issue has been properly preserved for appeal. (b) We must decide whether the district court erred as a matter of law when charging the jury that the prior conviction on Count 54 operated as collateral estoppel, necessarily establishing Racketeering Act 60 (which constituted one of the predicate acts for the RICO count). Pelullo maintains this application of the collateral estoppel doctrine precluded the jury from considering every fact that underlies Racketeering Act 60 (Count 54), thus impinging upon his right to a jury trial. This is a question of constitutional interpretation for which we exercise plenary review. United States v. Ciancaglini, 858 F.2d 923, 926 (3d Cir.1988). Collateral estoppel is part of the broader principle of res judicata, and generally bars relitigation of any issue which was actually determined in a prior action between the same parties. See, e.g., Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Originally developed in civil cases, collateral estoppel has been applied by the Supreme Court in criminal cases for the benefit of the defendant. Id. at 443-47, 90 S.Ct. at 1194-96. The Supreme Court rests such an application on the constitutional command in the Fifth Amendment guarantee against double jeopardy for the same offense. Id. Neither the Supreme Court nor this court has addressed directly the issue of whether collateral estoppel can be applied against the defendant in a criminal case. Instances of invoking collateral estoppel against the defendant have been rare, though not unheard of. See Commonwealth v. Feldman, 131 Mass. 588 (1881); Commonwealth v. Evans, 101 Mass. 25, 27 (1869). The increase in statutory crimes often makes it possible that a single transaction gives rise to criminal liability for multiple offenses. See Comment, The Use of Collateral Estoppel against the Accused, 69 Colum.L.Rev. 515, 516 (1969) (hereinafter Columbia Comment). This has resulted in the invocation of collateral estop-pel against criminal defendants in the Ninth" }, { "docid": "6513293", "title": "", "text": "L.Ed.2d 444 (1995). A. Collateral Estoppel Gilbert argues that his 1993 convictions are barred by the doctrine of collateral estop-pel. He says that to permit these charges would allow the government to rehash in 1993 an argument that failed to persuade the jury in 1990. See, e.g., U.S. v. Sarno, 596 F.2d 404, 408 (9th Cir.1979) (using collateral estoppel to bar perjury prosecution where acquittal in prior proceeding was based on jury accepting defendant’s testimony as true). The doctrine of collateral estoppel is included within the constitutional prohibition of double jeopardy. Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189, 1195-96, 25 L.Ed.2d 469 (1970). But, collateral estoppel bars a later prosecution “only where a fact or issue necessarily determined in the defendant’s favor in the former trial is an essential element of conviction at the second trial.” U.S. v. Brown, 983 F.2d 201, 202 (11th Cir.1993). Therefore, Gilbert must persuade us that the jury’s 1990 acquittal on the conspiracy charge was based on a finding that he lacked the criminal intent to further the money laundering enterprise. This Gilbert cannot do. Because Gilbert was convicted on several of the Travel Act counts, the jury necessarily concluded that he had the intent to promote the unlawful scheme. Thus, instead of relying on Gilbert’s testimony, the jury actually rejected parts of it. Also, a collateral estoppel claim must fail where “a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Ashe v. Swenson, 397 U.S. at 444, 90 S.Ct. at 1194. In this ease, a rational jury could have based its conspiracy acquittal on a finding that Gilbert failed to agree to join the conspiracy. Because Gilbert has been unable to carry his burden of persuasion, we conclude that the perjury and obstruction of justice convictions are not barred by collateral estoppel. B. Gaudin Error In the 1993 trial, the jury did not decide whether Gilbert’s false statements were material because it was then well established that materiality was a question of law. See, e.g., U.S. v. Dennis," }, { "docid": "3023338", "title": "", "text": "their privies, provided it was necessary to the result in the first suit.’ ”). When the issue of a defendant’s alienage was necessarily fully litigated in a criminal case, courts have applied the doctrine of collateral estoppel to the issue in a later criminal case. Pena-Cabanillas v. United States, 394 F.2d 785, 787 (9th Cir.1968) (finding of fact that defendant is alien necessary for prior conviction of violation of 18 U.S.C. § 911 — falsely and willfully representing himself to be citizen of United States). A defendant’s pleading guilty in an earlier case to a violation of 8 U.S.C. § 1326 — unlawfully re-entering the United States after deportation — entitled the district court in a later criminal case to invoke the doctrine on the issue of the defendant’s alienage, a judicial determination of which, it declared, had previously occurred. Hernandez-Uribe v. United States, 515 F.2d 20, 21 (8th Cir.1975), cert. denied, 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647 (1976). We must determine, however, whether a finding of alienage in a criminal case triggers the doctrine of collateral estoppel not in a later criminal case but in administrative — deportation—proceedings. As the INS correctly points out, this circuit has declared that a criminal conviction supplies “a valid basis for deportation.” Zinnanti v. Immigration & Naturalization Service, 651 F.2d 420, 421 (5th Cir. Unit A July 1981); see also Brown v. United States Immigration & Naturalization Service, 856 F.2d 728, 731 (5th Cir.1988) (deportation based on Wisconsin felony convictions). A finding of alienage when it is essential to the conviction, when it is a hinge upon which the verdict turns, may, consequently, be introduced as evidence to support a finding of deportability. See Pena-Cabanillas, 394 F.2d at 787 n. 1 (when issue of alienage is element of offense, verdict of guilty determines issue was proved). A finding of alienage in a prior case, therefore, collaterally estops that issue up to the date of the conviction. In Kandiel’s case the Eighth Circuit later considered his alienage. Kandiel, 865 F.2d at 969 (issue of Kandiel’s alienage critical at trial and remains" }, { "docid": "23612628", "title": "", "text": "government to reprosecute a defendant simply because it has discovered more evidence strengthening its case; indeed, if the exception were so construed, it would swallow the successive prosecution rule itself. VII Ragins has an alternative contention in support of his double jeopardy claim. Because, if accepted, it would require us to uphold the plea as to both the substantive and conspiracy counts without remanding for reconsideration of the latter, we must address it. The contention is that without regard to whether the successive prosecutions are for the “same offense,” the instant prosecution is barred by the doctrine of collateral estoppel embodied in the fifth amendment guarantee against double jeopardy. See Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). Under that principle, once an issue of ultimate fact has been resolved in a defendant’s favor by a valid and final judgment in a criminal proceeding, the government may not relitigate that issue in a subsequent criminal prosecution against him. Id. at 443, 90 S.Ct. at 1194. If the fact necessarily determined in the first trial is an essential element of the second offense, collateral estoppel may operate as a complete bar against the subsequent prosecution, affording the defendant “double jeopardy” protection, even when that prosecution is not for the “same offense” as the first. See United States v. Head, 697 F.2d 1200, 1205 (4th Cir.1982). In other instances, collateral estoppel may operate not wholly to preclude prosecution but simply to foreclose the relitigation of certain issues of fact that were necessarily resolved in the defendant’s favor in the first trial. See Hess v. Medlock, 820 F.2d 1368, 1373-74 (4th Cir.1987). A defendant relying on the collateral estoppel component of double jeopardy bears the burden of proving that the issue whose relitigation he seeks to foreclose was “necessarily determined” in the former trial. Head, 697 F.2d at 1208-09. In determining what issues were necessarily resolved in the first trial, a court must conduct a careful examination of “The record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter,” in" }, { "docid": "413389", "title": "", "text": "the determination is conclusive between the same parties in a subsequent action. E. g. Hernandez v. United States, 370 F.2d 171 (9th Cir. 1966). The doctrine thus precludes the relitigation of those issues actually decided and necessarily involved in the determination of the prior judgment. Id. In two cases, this court has extended the doctrine of collateral estoppel to preclude a defendant in a later criminal proceeding from relitigating facts that were necessarily decided against him during a prior criminal proceeding. See United States v. Colacurcio, 514 F.2d 1 (9th Cir. 1975) (facts that were essential to determination of a defendant’s guilt at conspiracy trial cannot be relitigated in later trial for income tax evasion); Pena-Cabanillas v. United States, 394 F.2d 785 (9th Cir. 1968) (defendant being tried for violation of § 1326 cannot relitigate the fact of alienage that was necessarily determined by conviction for violation of 18 U.S.C. § 911). In both Colacurcio and Pena-Cabanillas, the prior convictions were the product of fully litigated trials. The issue presented here is whether a judgment based on a plea of guilty also has collateral estoppel effect. The general rule is that the doctrine of collateral estoppel applies equally whether the previous criminal conviction was based on a jury verdict or a guilty plea. See Ivers v. United States, 581 F.2d 1362, 1367 (9th Cir. 1978) (facts necessarily determined by conviction based on guilty plea cannot be relitigated in later forfeiture proceeding); Brazzell v. Adams, 493 F.2d 489, 490 (5th Cir. 1974). By his plea of guilty, the voluntariness of which Bejar does not challenge, Bejar waived his right to confrontation and a jury trial. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). Because a knowing and voluntary guilty plea constitutes an admission of all the material facts alleged in the indictment, id., it is fair to estop a defendant from relitigating a common material fact even at a subsequent criminal proceeding. Hernandez-Uribe v. United States, 515 F.2d 20 (8th Cir. 1975), cert. denied, 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647" }, { "docid": "15488854", "title": "", "text": "3012 Chamberlayne Avenue, Richmond, Virginia (including the attached storage closet and the mailbox with the name tag O’Neill and the contents therein). The Virginia vehicles in question are a 1977 Chevrolet, Virginia license ENZ-356; a 1977 Dodge Diplomat, Virginia license FSE-260; and an otherwise unidentified vehicle found at 2708 Grove Avenue, Richmond, Virginia. . Some courts have extended the doctrine of criminal collateral estoppel to bar defendants from relitigating jury issues previously decided against them. See United States v. Bejar-Matrecios, 618 F.2d 81 (9th Cir.1980) (observing that a defendant is collaterally estopped from relitigating the issue of his alienage when that fact was necessarily established by an earlier jury verdict or guilty plea); United States v. Colacurcio, 514 F.2d 1 (9th Cir.1975) (holding that a fact necessary to establishing a defendant’s guilt on a previous conspiracy charge cannot be relitigated in his later income tax evasion trial); Hernandez-Uribe v. United States, 515 F.2d 20 (8th Cir.1975), cert. denied, 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647 (1976) (holding that a defendant who had pleaded guilty to a crime including alienage as an essential element is collaterally estopped from denying alienage in a later jury trial prosecution); People v. Majado, 22 Cal.App.2d 323, 70 P.2d 1015 (1937) (holding that the conclusive determination of the issue of paternity in an earlier conviction precluded the defendant from relitigating the issue in a subsequent prosecution); State v. Sargood, 80 Vt. 412, 68 A. 51 (1907) (permitting the conviction of the defendant for poisoning horses to serve as conclusive evidence of certain facts in a later prosecution of him for poisoning several people). While this Court need not reach this issue, such decisions are troublesome as they may well infringe upon a defendant’s Sixth Amendment rights to confront witnesses and to a jury trial as well as the right to due process. See United States v. DeAngelo, 138 F.2d 466, 468 (3d Cir.1943); Rouse v. State, 202 Md. 481, 490, 97 A.2d 285, 289, cert. denied, 346 U.S. 865, 74 S.Ct. 104, 98 L.Ed. 376 (1953); Mayers & Yarbrough, Bis Vexari: New Trials and" }, { "docid": "23102587", "title": "", "text": "436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Originally developed in civil cases, collateral estoppel has been applied by the Supreme Court in criminal cases for the benefit of the defendant. Id. at 443-47, 90 S.Ct. at 1194-96. The Supreme Court rests such an application on the constitutional command in the Fifth Amendment guarantee against double jeopardy for the same offense. Id. Neither the Supreme Court nor this court has addressed directly the issue of whether collateral estoppel can be applied against the defendant in a criminal case. Instances of invoking collateral estoppel against the defendant have been rare, though not unheard of. See Commonwealth v. Feldman, 131 Mass. 588 (1881); Commonwealth v. Evans, 101 Mass. 25, 27 (1869). The increase in statutory crimes often makes it possible that a single transaction gives rise to criminal liability for multiple offenses. See Comment, The Use of Collateral Estoppel against the Accused, 69 Colum.L.Rev. 515, 516 (1969) (hereinafter Columbia Comment). This has resulted in the invocation of collateral estop-pel against criminal defendants in the Ninth Circuit. United States v. Colacurcio, 514 F.2d 1, 6-7 (9th Cir.1975); Pena-Cabanillas v. United States, 394 F.2d 785, 786-88 (9th Cir.1968); United States v. Rangel-Perez, 179 F.Supp. 619, 626 (S.D.Cal.1959). See also United States v. Bejar-Matrecios, 618 F.2d 81, 83-84 (9th Cir.1980) (guilty plea applied as collateral estoppel). The U.S. Court of Appeals for the Eighth Circuit likewise adopted this rule. See Hernandez-Uribe v. United States, 515 F.2d 20, 21-22 (8th Cir.1975), cert. denied, 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647 (1976). The Massachusetts cases provided no analysis for their holding. In Feldman, the defendant was first charged with drunkenness to which he pleaded guilty. 131 Mass. 588. Subsequently, he was charged with assaulting a police officer with a dangerous weapon. Feldman attempted to introduce evidence to show that he was not drunk at the time of the alleged assault. Id. The court without analysis stated: The conviction and sentence of the defendant for drunkenness was a conclusive adjudication, as between him and the Commonwealth, that he was drunk at the time of" }, { "docid": "2995466", "title": "", "text": "was added. Where an examination has been conducted so recently as to furnish a basis for a determination of present competence, there is ordinarily no reason to order another. Id. at 376. Hernandez-Uribe v. United States, 515 F.2d 20 (8th Cir. 1975), cert. denied 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647 (1976), involved an alien who had previously been convicted for unlawfully entering the United States. Subsequently he was charged with unlawful re-entry and was again convicted. During his latter trial, the defendant testified that he had been born in Texas. Nonetheless, the district judge instructed the jury that the defendant’s prior conviction foreclosed consideration of that question. Since he had presented no evidence to show a change in his status as an alien between his first and second trials, the district judge refused to submit the issue of citizenship to the jury. The Court of Appeals stated: We think the instant case is particularly appropriate for the application of the doctrine of collateral estoppel. The record shows that defendant had evidence of his claimed Texas birth prior to his guilty plea in the 1967 criminal prosecution. The evidence of his Mexican birth is strong. Defendant did have an opportunity to contest the Government’s determination of alienage in that case on the same basis as alleged here. He there had a right to a jury trial in which he could have presented any evidence he had pertaining to the place of his birth. By his plea of guilty, defendant waived those constitutional rights here challenged which are guaranteed every criminal defendant. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1970); McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Defendant has made no challenge to the validity of his guilty plea to the 1967 charge. He has made no claim that his status as an alien has changed since 1967. Under such circumstances, we see no violation of any constitutional right of the defendant in collaterally es-topping him from denying his alien status. Id. at 22. One" }, { "docid": "413390", "title": "", "text": "based on a plea of guilty also has collateral estoppel effect. The general rule is that the doctrine of collateral estoppel applies equally whether the previous criminal conviction was based on a jury verdict or a guilty plea. See Ivers v. United States, 581 F.2d 1362, 1367 (9th Cir. 1978) (facts necessarily determined by conviction based on guilty plea cannot be relitigated in later forfeiture proceeding); Brazzell v. Adams, 493 F.2d 489, 490 (5th Cir. 1974). By his plea of guilty, the voluntariness of which Bejar does not challenge, Bejar waived his right to confrontation and a jury trial. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). Because a knowing and voluntary guilty plea constitutes an admission of all the material facts alleged in the indictment, id., it is fair to estop a defendant from relitigating a common material fact even at a subsequent criminal proceeding. Hernandez-Uribe v. United States, 515 F.2d 20 (8th Cir. 1975), cert. denied, 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647 (1976). Thus, evidence of a prior conviction, even though founded on a plea of guilty, may be relevant in a subsequent criminal proceeding to establish material facts necessary to sustain the prior judgment. Id. In this case, because alien-age is an element .of a § 1325 conviction, evidence of the § 1325 conviction would have established conclusively that Bejar was an alien at the time of the § 1325 conviction. See Pena-Cabanillas, 394 F.2d at 786. B. Prejudice Even though introduction of the pri- or judgment may have been relevant, the judgment must be excluded under Fed.R. Evid. 403 if its probative value was outweighed by possible prejudice to the defendant. See United States v. Pavon, 561 F.2d 799 (9th Cir. 1977) (even though evidence of past crimes is not prohibited by Fed.R.Evid. 404(b), such evidence should be excluded unless its probative value outweighs any danger of unfair prejudice). In this case, we think that introduction of the prior judgment was reversible error. Evidence of a prior conviction that conclusively establishes a material element of" }, { "docid": "1341655", "title": "", "text": "Double Jeopardy Clause only bars “successive trial on an offense not charged in the original indictment [if] jeopardy has already terminated on, what is for double jeopardy purposes, the same offense”) (emphasis added) (internal quotation omitted). We have considered Howe’s other double jeopardy arguments and find them to be without merit. C. Collateral Estoppel Howe also contends that because the acquittals at the first trial necessarily de termined certain facts against the government that it would be required to prove to convict him on the kidnapping and conspiracy counts alleged in Howe II, the government is collaterally estopped from pursuing either count. The Supreme Court has incorporated the doctrine of issue preclusion, or collateral estoppel, into the Fifth Amendment’s guarantee against double jeopardy. United States v. Mitchell, 476 F.3d 539, 544 (8th Cir.2007) (citing Ashe v. Swenson, 397 U.S. 436, 442-43, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)). Unlike traditional double jeopardy principles, which only bar successive prosecutions for the same offense, collateral estoppel can bar a later trial for a different offense, “if one of the facts necessarily determined in the former trial is an essential element of the subsequent prosecution.” United States v. Yeager, 521 F.3d 367, 371 (5th Cir.2008) (emphasis in original) (quotation omitted), petition for cert. filed, 77 U.S.L.W. 3052 (U.S. July 8, 2008) (No. 08-40). This is because the doctrine of collateral estoppel dictates that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443, 90 S.Ct. 1189. But a fact previously determined in a criminal case is only an ultimate fact if “it was necessarily determined by the jury against the government and, in the second prosecution, that same fact is required to be proved beyond a reasonable doubt in order to convict.” Prince v. Lockhart, 971 F.2d 118, 123 (8th Cir.1992). And, the burden is on the defendant to establish that the first jury necessarily decided the issue he seeks to foreclose from consideration at a second trial." }, { "docid": "12573354", "title": "", "text": "the robber.” Gaddis, 424 U.S. at 548, 96 S.Ct. at 1026 (quoting Heflin, 358 U.S. at 419-20, 79 S.Ct. at 454). McLaurin was satisfied with his conviction on receipt of stolen funds but the government was not and moved to retry McLaurin on the bank robbery charge. The district court held that because the theories underlying the two crimes were inconsistent, the jury’s conviction on receipt of stolen bank funds collaterally estopped the government from contending in a second trial that the defendant was the bank robber rather than a recipient of stolen funds from the robbery. The Fifth Amendment guarantee against double jeopardy encompasses the doctrine of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). This circuit employs a three-step test to determine whether collateral estoppel applies: (1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was “litigated” in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case. Pettaway v. Plummer, 943 F.2d 1041, 1043-44 (9th Cir.1991) (emphasis added) (citation omitted), cert. denied, — U.S. -, 113 S.Ct. 296, 121 L.Ed.2d 220 (1992). In this appeal, the government challenges the district court’s dismissal, arguing that the third prong of the collateral estoppel test has not been met. It contends that for collateral estoppel to apply, the jury needed to have found that the defendant was not involved in the robbery by acquitting him on the first count. Because the jury hung on the robbery count, the government argues that the issue was not “necessarily decided.” The irony, of course, is that the Supreme Court’s holding in Gaddis tells us that, as a matter of law, if the § 2113(c) conviction (possession/receipt of stolen bank funds) is to have any validity, then the jury must have found the" } ]

[ { "docid": "13087544", "title": "", "text": "some of the benefit the parties sought in bringing suit.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). The fact that a case is settled prior to any formal adjudication on the merits is not a bar to plaintiffs’ recovery of attorney’s fees. Simply because plaintiffs “prevailed through a settlement rather than through litigation does not weaken [their] claim to fees.” Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980). In cases where a settlement is reached, the test for determining whether plaintiffs are prevailing parties is twofold. First, “plaintiffs’ lawsuit must be causally linked to the achievement of the relief obtained.” Har rington v. DeVito, 656 F.2d 264, 266 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982). In other words, plaintiffs’ lawsuit must “have played a provocative role in obtaining relief____” Id. at 267. The second prong of the test requires that defendants “not have acted wholly gratuitously, i.e., the plaintiffs’ claims, if pressed, cannot have been frivolous, unreasonable, or groundless.” Id. at 266-67 (citing Nadeau, 581 F.2d at 280-81; United Handicapped Federation v. Andre, 622 F.2d 342, 346-47 (8th Cir. 1980)). Accord Illinois Welfare Rights Organization v. Miller, 723 F.2d 564, 566 (7th Cir.1983). In the instant case, no one contends that plaintiffs’ action was wholly frivolous or unreasonable. Indeed, the district court’s only grounds for denying fees was that plaintiffs had reached an agreement with defendants regarding the enforcement of the sign ordinance on March 1, seven days prior to the time that plaintiffs filed their action. In light of this “prior” settlement, the district court concluded that plaintiffs’ action lacked the sufficient causal connection with defendants’ decision not to enforce the ordinance necessary to justify a fee award. We find that in basing its denial of fees on this settlement the district court abused its discretion. A review of the record reveals that an agreement not to enforce the sign ordinance was reached on March 1" } ]

[ { "docid": "5717531", "title": "", "text": "grounds. First, defendants contend that plaintiffs were not “prevailing parties,” a prerequisite to recovery of fees under both § 1988 and under § 794a(b). Second, even if plaintiffs could be considered prevailing parties, defendants contend that this proceeding is in essence merely an action to enforce the provisions of EAHCA, and that since that statute does not provide for the award of attorney's fees, the grant of such an award was erroneous. II. PREVAILING PARTIES The Civil Rights Attorney’s Fee Award Act of 1976, 42 U.S.C. § 1988, provides: In any action or proceedings to enforce a provision of Section 1983 ..., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, (emphasis added) The attorney’s fee provision contained in § 505, 29 U.S.C. § 794a(b) similarly provides: In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, (emphasis added) A party “prevails” within the meaning of § 1988 and § 794a(b) if his or her lawsuit is a substantial factor or significant catalyst in achieving the primary relief sought. Robinson v. Kimbrough, 652 F.2d 458, 465 (5th Cir.1981). The fact that a party prevails through settlement rather than through full litigation does not prevent the awarding of fees. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980). Defendants contend that this lawsuit cannot be considered the cause of the relief ultimately obtained by plaintiffs because prior to the date this lawsuit was filed, defendants were already undertaking to provide plaintiffs the relief requested in their application for a preliminary injunction. Defendants argue that they would have provided plaintiffs a residential place ment and interim services even without the entry of a preliminary injunction. Defendants correctly state the law when they assert that “[a] civil rights plaintiff may not collect attorney’s fees for demanding that a state officer do" }, { "docid": "13952981", "title": "", "text": "VI of the Civil Rights Act of 1964, the court, in its discretion may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988. “ ‘[Plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). A different standard is applied to determine when a defendant is a prevailing party for purposes of § 1988. A defendant “may be considered a prevailing party under section 1988 if plaintiff’s action was ‘vexatious, frivolous, or brought to harass or embarrass the defendant,’ ” Hill v. Longini, 767 F.2d 332, 335 (7th Cir.1985) (quoting Hensley, 461 U.S. at 429 n. 2, 103 S.Ct. at 1937 n. 2), or if the plaintiff’s action is “meritless in the sense that it is groundless or without foundation.” Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980); Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1983). We further note that “[ajttorneys’ fee awards under 42 U.S.C. § 1988 rests within the sound discretion of the trial court,” Harrington v. DeVito, 656 F.2d 264, 266 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982), and “[tjhis court will not disturb an award of attorneys’ fees under [§ 1988] unless the district court abused its discretion.” O’Neil v. City of Lake Oswego, 642 F.2d 367, 368 (9th Cir.1981). In the case at bar, the district court concluded that Count III was based on a violation of 42 U.S.C. § 1983 and that Curry failed to allege any conduct on the part of the defendants even arguably under col- or of state law as required by 42 U.S.C. § 1983. Hudson v. Chicago Teachers Union Local No. 1, 743 F.2d 1187, 1191 (7th Cir.1984), cert. granted, — U.S.-, 105" }, { "docid": "16254143", "title": "", "text": "when there are several links in the chain of events connecting the claim brought and the relief granted. In Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980), for example, the Supreme Court upheld an award of attorneys’ fees under section 1988 where the plaintiff’s case was settled by a consent decree that gave the plaintiff substantially all the relief she had sought in her complaint. The Court stated: The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees. Nothing in the language of § 1988 conditions the District Court’s power to award fees on full litigation of the issues or on a judicial determination that the plaintiff’s rights have been violated. Id. at 129, 100 S.Ct. at 2575. This court has declared that “[wjhether [a plaintiff] is entitled to a fees award should be determined by whether her case acted as a ‘catalyst’ for the vindication of her constitutional rights.” Staten v. Housing Auth., 638 F.2d 599, 605 (3d Cir. 1980). Our decisions have made it clear that a plaintiff can receive attorneys’ fees even if the causal link between the civil rights suit and the relief obtained is not as direct as when the ease is completely adjudicated in the district court itself or formally settled with the defendants in the context of the civil rights proceeding. In Ross v. Horn, 598 F.2d 1312 (3d Cir. 1979), cert. denied, 448 U.S. 906, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980), the plaintiffs filed suit in district court challenging New Jersey’s procedure for handling suspected fraud in unemployment benefits. After the suit was filed, New Jersey made changes in its benefit processing system that cured the alleged faults in the system. This action then led to judgment being entered against the plaintiffs. Nevertheless, this court ruled that the plaintiffs might still be entitled to attorneys’ fees: [W]e refuse to give conclusive weight to the form of the judgment. In assessing who is a prevailing party, we look to the substance of the litigation’s outcome. If the new" }, { "docid": "21546733", "title": "", "text": "catalyst anodyne demands that she vault two hurdles en route to prevailing party status, showing (1) a causal connection between the litigation and the relief obtained, and (2) that the fee-target did not act gratuitously. Id. at 280-81. Here, the first hurdle is too high (and so, we do not reach the second). To be regarded as a catalyst, a suit need not be the sole cause of the fee-target’s actions, but it must be a competent producing cause of those actions in at least some measurable, significant degree: [N]o award is required if the court determines that plaintiff’s suit was completely superfluous in achieving the improvements undertaken by defendants on plaintiff’s behalf. ... [T]he plaintiff’s suit ... [must be] a necessary and important factor in achieving the improvements .... Id.; see also Coalition for Basic Needs, 691 F.2d at 599 (same). Put another way, the litigation’s “provocative role” in the calculus of relief is a sine qua non to the fee-seeker’s successful deployment of the theorem. Nadeau, 581 F.2d at 280; Harrington v. DeVito, 656 F.2d 264, 267 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982). In Truax, a case squarely in point, the Eighth Circuit found the requisite causal connection lacking: [E]ven granting that Congress’ enactment of the Reform Act was partly a result of the thousands of suits filed by terminated claimants against the Secretary, we believe that the causal link between Truax’s individual lawsuit and Congress’s action is too tenuous to satisfy the catalyst test. Id. at 997 (citation omitted); see also Goodro v. Bowen, 854 F.2d 313, 314-15 (8th Cir.1988); but cf. Gowen v. Bowen, 855 F.2d 613, 617 n. 3 (8th Cir.1988) (distinguishing Truax ). The Seventh Circuit has held the same: The nexus between Congress’ action and [the social security claimant’s] suit is too attenuated to conclude that the latter played a “provocative role” in causing the former. The Secretary did not reinstate [claimant’s] benefits because the Secretary wanted to compromise a dispute or because he became convinced that his prior position was unprincipled. Rather, the Secretary" }, { "docid": "12304981", "title": "", "text": "of the State’s emergency shelter policy does not raise a federal claim sufficient to support the jurisdiction of the federal court. Title 42 U.S.C. § 1988 provides, in pertinent part, that the court in its discretion may allow a “prevailing party” in a section 1983 action to recover reasonable attorney’s fees. “ ‘[P]laintiffs may be considered “prevailing parties” for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.’ ” Texas State Teachers Ass’n v. Garland Indep. School Dist., — U.S.-, 109 S.Ct. 1486,1491, 103 L.Ed.2d 866 (1989) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). At a minimum, the plaintiff must demonstrate a change in the legal relationship between itself and the defendant arising from the resolution of the lawsuit. Id. 109 S.Ct. at 1493. However, relief need not be judicially decreed in order to justify a fee award under § 1988. A lawsuit sometimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment — e.g., a monetary settlement or a change in conduct that redresses the plaintiffs’ grievances. When that occurs, the plaintiff is deemed to have prevailed despite the absence of a formal judgment in his favor. Hewitt v. Helms, 482 U.S. 755, 760-61, 107 S.Ct. 2672, 2675-76, 96 L.Ed.2d 654 (1987) (citing Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980)); see also McCann v. Coughlin, 698 F.2d 112, 128 (2d Cir.1983). In applying the prevailing party standard, it is helpful to identify the relief sought by the plaintiff and compare it with the relief obtained as a result of the suit. See Institutionalized Juveniles v. Sec’y of Pub. Welfare, 758 F.2d 897, 911 (3d Cir.1985) (citing Bonnes v. Long, 599 F.2d 1316, 1319 (4th Cir.1979), cert. denied, 455 U.S. 961, 102 S.Ct. 1476, 71 L.Ed.2d 681 (1982) (look to the complaint to identify the conditions the suit sought to change, then use this as a benchmark to measure relief ultimately" }, { "docid": "10873528", "title": "", "text": "is entitled to an award of attorneys’ fees and costs reasonably incurred. 42 U.S.C. § 2000e-5(k) (1982). “ ‘Plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Busche v. Burkee, 649 F.2d 509, 521 (7th Cir.1981) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). Thus, a party may prevail through settlement. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980); Harrington v. DeVito, 656 F.2d 264, 266 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982). When a party claims that she pre vailed through settlement prior to full litigation on the merits, we apply a two-part test: [T]o prevail in a settled case, the plaintiffs’ lawsuit must be causally linked to the achievement of the relief obtained. Secondly, the defendant must not have acted wholly gratuitously, i.e., the plaintiffs’ claims, if pressed, cannot have been frivolous, unreasonable, or groundless. In re Burlington Northern, Inc. Employment Practices Litig., 832 F.2d 422, 425 (7th Cir.1987) (quoting Harrington v. DeVito, 656 F.2d at 266-67). The University did not challenge Nanet-ti’s claim with respect to the second part of the test. The University did not assert that it acted gratuitously, and the district court made no specific findings with regard to the frivolity or groundlessness of Nanet-ti’s claim. At one point in its discussion of causation, however, the district court referred to the University’s denial of tenure as “wrongful,” suggesting that the court did not perceive Nanetti’s claim as groundless. We are convinced, based on the record, that Nanetti was not pressing a frivolous or groundless claim of gender discrimination. We find that part of the test satisfied and direct our attention to the issue of causation. The lawsuit is causally linked to the relief obtained if it played “a provocative role in obtaining relief.” Harrington, 656 F.2d at 267. In other words, the lawsuit" }, { "docid": "7918695", "title": "", "text": "a settlement is a prevailing party under ERISA. Rootberg v. Central States et al., 856 F.2d 796, 799 (7th Cir.1988). The problem with claims that are settled is that there are reasons for parties to settle that are wholly unrelated to the substance and issues involved in the litigation. A suit may be groundless, and settled for its nuisance value, or settled by a party for wholly gratuitous reasons, thus not justifying an award of attorney’s fees. Harrington v. DeVito, 656 F.2d 264, 266-67 (7th Cir.1981). When a cause is settled or disposed of \"without full litigation on the merits (as in this case), this Circuit applies a two-step analysis to determine if the party prevailed in the litigation. In In re Burlington Northern Inc., 832 F.2d 422, 425 (7th Cir.1987), we ruled that a party must initially prove that the outcome of the plaintiffs lawsuit must be causally linked to the achievement of the relief obtained. The lawsuit is causally linked to the relief obtained if it played a “provocative role in obtaining relief.” Nanetti v. University of Illinois, 867 F.2d 990, 993 (7th Cir.1989) citing DeVito, 656 F.2d at 267. Therefore “the lawsuit must [be] a ‘catalyst’ or ‘material factor’ in obtaining concessions from the opponent and a favorable outcome to the dispute.” Id. quoting Ekanem v. Health & Hospital Corp., 778 F.2d 1254, 1258 (7th Cir.1985); Stewart v. Hannon, 675 F.2d 846, 851 (7th Cir.1982). In the instant case, while the record is clear that the coalition of people and organizations who joined together to provide for Hooper’s treatment were not required to do so but donated out of the goodness of their heart, we cannot rule that the settlement was not “causally related” to the lawsuit. On May 25, 1993, TPA advised Hooper that his HDC-ABMT would not be covered under the Demeo plan. On June 23, 1993, Hooper’s physician requested that TPA reevaluate its decision. On August 4, 1993, TPA again advised Hooper that HDC-ABMT treatment fell into what the plan considered experimental and investigational treatment. This suit was filed on August 16, 1993. The" }, { "docid": "14324085", "title": "", "text": "seq.] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of its costs.” Although section 1988 on its face leaves the award of fees to the discretion of the court, cases in this circuit make it clear that “a prevailing plaintiff should receive fees almost as a matter of course.” Dawson v. Pastrick, 600 F.2d 70, 79 (7th Cir. 1979); Davis v. Murphy, 587 F.2d 362,364 (7th Cir. 1978). Even nominal damages will justify a fee award to the prevailing party, Skoda v. Fontani, 646 F.2d 1193 (7th Cir. 1981), although the nominal nature of the damages is a factor to be considered in determining the amount of the award. Bonner v. Coughlan, 657 F.2d 931, 934 (7th Cir. 1981); Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1st Cir. 1979). As a threshold matter, it is clear that a party may be considered to have prevailed within the meaning of section 1988 when rights are vindicated by the en try of a consent judgment rather than after a full trial on the merits. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980); Dawson v. Pastrick, 600 F.2d 70, 78 (7th Cir. 1979). See also S.Rep. No.94-1011, 94th Cong., 2d Sess., at 5 (1976), reprinted in [1976] U.S.Code Cong. & Admin.News 5908,5912. In this case, plaintiffs have clearly prevailed through the entry of the consent decrees described earlier in this opinion. They have secured defendants’ agreement to respect merit principles of public employment in the Lake County Sheriff’s Office and their pledge not to condition any aspect of employment upon political support, sponsorship or affiliation. In addition, the consent decrees establish a mechanism to enforce the principles embodied therein and provide for continuing jurisdiction of this Court so as to assure that defendants’ undertakings are not merely empty promises. The named plaintiffs in this action will also receive a total of approximately $25,000 in monetary damages under the terms of their settlement with Lake County. Thus, under any view of" }, { "docid": "22944251", "title": "", "text": "The district court disagreed and denied Stewart’s motion for attorneys fees. “The standard of review of an award of attorneys’ fees to the prevailing party under § 1988 is whether the trial court abused its discretion in making or denying the award.” Libby by Libby v. Illinois High School Ass’n, 921 F.2d 96, 98 (7th Cir.1990). Generally, we only find an abuse of discretion if “no reasonable person could take the view adopted by the trial court.” Id. Stewart recognizes that he has been denied all relief in the district court. However, he believes he is still a “prevailing party” under the catalyst or equivalency doctrine. The equivalency doctrine permits a party to “prevail” and recover attorneys fees if the lawsuit “produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment — e.g., a monetary settlement or a change in conduct that redresses the plaintiffs grievance.” Hewitt v. Helms, 482 U.S. 765, 760-61, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 664 (1987). Stewart claims that the defendants have altered their behavior in two ways in response to his lawsuit: (1) they transferred him to Logan in July of 1991, and (2) they have changed their policy regarding lockdowns. Stewart must pass a two-part test in order to obtain the fees he seeks. First, “the plaintiff[’s] lawsuit must be causally linked to the achievement of the relief obtained,” and second, “the defendant must not have acted wholly gratuitously, ie., the plaintiff[’s] claim[], if pressed, cannot have been frivolous, unreasonable, or groundless.” Illinois Welfare Rights Organization v. Miller, 723 F.2d 564, 566 (7th Cir.1983) (citing Harrington v. DeVito, 656 F.2d 264, 266-67 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982)). Stewart does not make it past the first hurdle. Stewart has the burden of providing facts that demonstrate the defendants’ actions were the result of the lawsuit. Pardo v. Hosier, 946 F.2d 1278, 1285 (7th Cir.1991). To show that he was transferred to Logan as a result of his lawsuit, Stewart points only to a settlement" }, { "docid": "6086900", "title": "", "text": "of this term, through luck as well as sweat. If you bring a suit, and incur expense in its prosecution, and then the defendant throws in the towel for reasons entirely unrelated to your efforts, still you have won, and if your expense was prudent, should it not be reimbursed? The problem lies in determining whether or in what sense the plaintiff has prevailed as a litigant. Suppose the plaintiffs suit was frivolous and would surely have gone down to defeat if litigated, but the defendant, for reasons extrinsic to the suit, decided to cure the plaintiffs grievance; then in no sense relevant to a statutory scheme for reimbursing the expenses of prevailing parties could the plaintiff be entitled to reimbursement. The problem arises frequently in cases that are settled. See, e.g., Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574-75, 65 L.Ed.2d 653 (1980). The plaintiff has got something for his efforts, but does it follow that he prevailed? It does not. The suit may have been groundless, and settled merely because it had some nuisance value; in such a case the plaintiff will not receive an award of attorney’s fees. Harrington v. DeVito, 656 F.2d 264, 266-67 (7th Cir.1981); Palmer v. City of Chicago, 806 F.2d 1316, 1323 (7th Cir.1986); EEOC v. Madison Community Unit School District No. 12, 818 F.2d 577, 590 (7th Cir.1987). (Conversely, if the suit is not frivolous and does produce results— which could be a favorable settlement, or even a judgment in another forum than the one in which the suit was brought — an award of attorney’s fees is permissible. See, e.g., Hewitt v. Helms, — U.S. —, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 654 (1987); Sullivan v. Commonwealth of Pennsylvania Department of Labor, Etc., 663 F.2d 443, 449 (3d Cir.1981).) The case before us presents the reverse situation: not the mer-itless ease that produces some benefit for the plaintiff but the possibly meritorious case that, because of supervening events, has no effect. The courts uniformly reject the plaintiff’s claim for reimbursement unless he can show that the suit was" }, { "docid": "5717532", "title": "", "text": "reasonable attorney’s fee as part of the costs, (emphasis added) A party “prevails” within the meaning of § 1988 and § 794a(b) if his or her lawsuit is a substantial factor or significant catalyst in achieving the primary relief sought. Robinson v. Kimbrough, 652 F.2d 458, 465 (5th Cir.1981). The fact that a party prevails through settlement rather than through full litigation does not prevent the awarding of fees. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980). Defendants contend that this lawsuit cannot be considered the cause of the relief ultimately obtained by plaintiffs because prior to the date this lawsuit was filed, defendants were already undertaking to provide plaintiffs the relief requested in their application for a preliminary injunction. Defendants argue that they would have provided plaintiffs a residential place ment and interim services even without the entry of a preliminary injunction. Defendants correctly state the law when they assert that “[a] civil rights plaintiff may not collect attorney’s fees for demanding that a state officer do what he would have done in any case.” Coen v. Harrison County School Board, 638 F.2d 24, 26 (5th Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 647 (1982). In contrast to defendants’ description of the factual situation, however, the district court made a factual finding that plaintiffs had “vindicated substantial rights.” The court found that “Teresa Diane was expelled from school in January, 1980 and received no educational services until this court’s order of interim relief on July 10, 1980, shortly after this suit was filed.” In the opinion of the district court, the lawsuit was a catalyst in obtaining relief for Diane. Under Federal Rule of Civil Procedure 52(a), a fact finding “shall not be set aside unless clearly erroneous.” Fed.R.Civ.P. 52(a); see Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). On appeal, this Court is obligated to accept the findings of the trial judge unless, after viewing all of the evidence, we are left with the “definite and firm conviction that a" }, { "docid": "7918694", "title": "", "text": "of the offending parties to satisfy personally an award of attorneys’ fees; (3) whether or not an award of attorneys’ fees against the offending parties would deter other persons acting under similar circumstances; (4) the amount of benefit conferred on members of the pension plan as a whole; and (5) the relative merits of the parties’ positions.” Nichol v. Pullman Standard, Inc., 889 F.2d 115, 121 n. 9 (7th Cir.1989) (citations omitted). Plaintiff further asserts that as the prevailing party he is entitled to an award of attorney’s fees. Plaintiff’s reasoning is that he settled his claim in return for full coverage of his medical bills, thus he claims that he “succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). This multi-factor test, articulated for payment of attorney’s fees to prevailing parties in civil rights claims, is not the test this Circuit uses to determine if a party that receives a settlement is a prevailing party under ERISA. Rootberg v. Central States et al., 856 F.2d 796, 799 (7th Cir.1988). The problem with claims that are settled is that there are reasons for parties to settle that are wholly unrelated to the substance and issues involved in the litigation. A suit may be groundless, and settled for its nuisance value, or settled by a party for wholly gratuitous reasons, thus not justifying an award of attorney’s fees. Harrington v. DeVito, 656 F.2d 264, 266-67 (7th Cir.1981). When a cause is settled or disposed of \"without full litigation on the merits (as in this case), this Circuit applies a two-step analysis to determine if the party prevailed in the litigation. In In re Burlington Northern Inc., 832 F.2d 422, 425 (7th Cir.1987), we ruled that a party must initially prove that the outcome of the plaintiffs lawsuit must be causally linked to the achievement of the relief obtained. The lawsuit is causally linked to the relief obtained if it played a “provocative role in obtaining relief.”" }, { "docid": "10873527", "title": "", "text": "itself —all these efforts were to no avail. Nan-etti then obtained authority from the EEOC to file suit against the University and filed a complaint in November 1985. Nanetti took no further legal action until the entry of the settlement. At the second tenure review in May and June of 1986, Nanetti quickly received approval for tenure. The school director recommended a salary of $31,086. Nanetti’s attorney demanded that the University award back pay to Nanetti, increase her salary to the same amount she would have obtained had the University given her tenure in 1984, and also pay her attorneys’ fees. The parties settled the discrimination suit at a salary of $34,720 in September 1986 but left open for litigation the question of attorneys’ fees. Nanetti brought this suit for attorneys’ fees under Title VII. The district court denied attorneys’ fees because Nanetti was not a prevailing party, and even if she was, “her legal fees were not reasonably incurred.” Nanetti appeals. II. ANALYSIS A. Prevailing Party A prevailing party in a Title VII lawsuit is entitled to an award of attorneys’ fees and costs reasonably incurred. 42 U.S.C. § 2000e-5(k) (1982). “ ‘Plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Busche v. Burkee, 649 F.2d 509, 521 (7th Cir.1981) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). Thus, a party may prevail through settlement. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980); Harrington v. DeVito, 656 F.2d 264, 266 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982). When a party claims that she pre vailed through settlement prior to full litigation on the merits, we apply a two-part test: [T]o prevail in a settled case, the plaintiffs’ lawsuit must be causally linked to the achievement of the relief obtained. Secondly, the defendant must not have acted wholly gratuitously," }, { "docid": "537227", "title": "", "text": "disputes as to which hours claimed are attributable to that participation and which are not, I find that the issue is ripe for summary resolution, since it is primarily a legal issue. I also note that my decision in Knop v. Johnson is currently on appeal to the Sixth Circuit. Therefore, it remains to be seen whether plaintiffs actually are the “prevailing party” in that litigation. For purposes of this motion, however, I will assume that the Knop plaintiffs will prevail on appeal and that they are “prevailing parties” in Knop v. Johnson, at least to the extent that they prevailed at trial. Discussion 42 U.S.C. § 1988 allows the Court to award attorneys fees to a prevailing party in civil rights litigation. A party is a prevailing party where it “succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). See also, Ruckelshaus v. Sierra Club, 463 U.S. 680, 688, 103 S.Ct. 3274, 3279, 77 L.Ed.2d 938 (1983) (“to be a ‘prevailing party,’ one must succeed on the ‘central issue,’ or ‘essentially succee[d] in obtaining the relief he seeks in his claims on the merits’ ”); Seaway Drive-In, Inc. v. Township of Clay, 791 F.2d 447, 450 note 7 (6th Cir.1986); Kentucky Association for Retarded Citizens v. Conn, 718 F.2d 182, 186 (6th Cir.1983) (denying fees where plaintiffs prevailed on “some issues but not on the central issue”); Coen v. Harrison County School Board, 638 F.2d 24, 26 (5th Cir.1981). The fact that a lawsuit raising constitutional claims is settled or resolved on nonconstitutional grounds does not preclude an award of fees. Smith v. Robinson, 468 U.S. 992, 1006, 104 S.Ct. 3457, 3465, 82 L.Ed.2d 746 (1984); Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980) (“The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees”). In such cases, “plaintiffs may recover attorney's fees if their lawsuit was a substantial" }, { "docid": "537228", "title": "", "text": "103 S.Ct. 3274, 3279, 77 L.Ed.2d 938 (1983) (“to be a ‘prevailing party,’ one must succeed on the ‘central issue,’ or ‘essentially succee[d] in obtaining the relief he seeks in his claims on the merits’ ”); Seaway Drive-In, Inc. v. Township of Clay, 791 F.2d 447, 450 note 7 (6th Cir.1986); Kentucky Association for Retarded Citizens v. Conn, 718 F.2d 182, 186 (6th Cir.1983) (denying fees where plaintiffs prevailed on “some issues but not on the central issue”); Coen v. Harrison County School Board, 638 F.2d 24, 26 (5th Cir.1981). The fact that a lawsuit raising constitutional claims is settled or resolved on nonconstitutional grounds does not preclude an award of fees. Smith v. Robinson, 468 U.S. 992, 1006, 104 S.Ct. 3457, 3465, 82 L.Ed.2d 746 (1984); Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980) (“The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees”). In such cases, “plaintiffs may recover attorney's fees if their lawsuit was a substantial factor or a significant catalyst in motivating the defendants to end their unconstitutional behavior.” Robinson v. Kimbrough, 652 F.2d 458, 465-66 (5th Cir.1981). See also, Gerena-Valentin v. Koch, 739 F.2d 755, 758-59 (2d Cir.1984); Commissioners Court of Medina County, Texas v. United States, 683 F.2d 435, 440 (D.C.Cir.1982); Coen v. Harrison County School Board, 638 F.2d 24, 26 (5th Cir.1981). In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Supreme Court held that, “Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that which is reasonable in light of the results obtained.” Id. at 440, 103 S.Ct. at 1943. Thus, plaintiffs may recover fees for time spent on claims upon which they prevailed and for time spent on related, but unsuccessful claims. See, Smith v. Robinson, 468 U.S. at 1006-07, 104 S.Ct." }, { "docid": "23161601", "title": "", "text": "portion of the award. On June 24,1980, the court ordered Cook County to pay 80%, and the State to pay 20%, of the fee award. In its appeal of the allocation order, the State argues that the allocation of fees against the State constituted an abuse of discretion because the plaintiffs did not prevail against it, or alternatively, even if they did prevail against Illinois, special circumstances exist which render an award against the State unjust. I. Attorneys’ fee awards under 42 U.S.C. § 1988 rest within the sound discretion of the trial court. Muscare v. Quinn, 614 F.2d 577, 579-80 (7th Cir. 1980); Konczak v. Tyrrell, 603 F.2d 13, 19 (7th Cir. 1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980). The appellant concedes that the lack of formal judicial relief does not itself deprive the plaintiffs of prevailing party status. Attorneys’ fees may be appropriate if the plaintiffs have vindicated their rights by settlement. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980); Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir. 1978). In Nadeau, the First Circuit established guidelines for determining prevailing party status in settlement cases. Subsequently, the Nadeau test was adopted by the Eighth Circuit in United Handicapped Federation v. Andre, 622 F.2d 342, 345-47 (8th Cir. 1980). Essentially, to prevail in a settled case, the plaintiffs’ lawsuit must be causally linked to the achievement of the relief obtained. Secondly, the defendant must not have acted wholly gratuitously, i. e., the plaintiffs’ claims, if pressed, cannot have been frivo lous, unreasonable, or groundless. Nadeau v. Helgemoe, 581 F.2d at 280-81; United Handicapped Federation v. Andre, 622 F.2d at 346-47. The first step, which requires that the lawsuit in some way have played a provocative role in obtaining relief, is a factual determination. Nadeau, 581 F.2d at 280. The appellant argues that the plaintiffs obtained no relief against the Department of Mental Health. While the consent decree itself outlines obligations, many of which relate only to the Cook County defendants, the record supports the district court’s" }, { "docid": "6342424", "title": "", "text": "Cong., 2d Sess. 5, reprinted in U.S.Code Cong. & Ad.News, 5908, 5912 (1976); Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). A number of circuit courts of appeals, including this circuit, have declared that a plaintiff is entitled to a fee award where it can be shown that his or her case acted as a “catalyst” in motivating the defendant to provide the primary relief sought. See, e.g., Sullivan v. Pennsylvania Dep’t of Labor, 663 F.2d 443 (3d Cir.1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 1716, 72 L.Ed.2d 138 (1982); Harrington v. DeVito, 656 F.2d 264 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982); Foster v. Boorstin, 561 F.2d 340 (D.C.Cir.1977). Prevailing party status is not limited to plaintiffs. A “prevailing” defendant may become eligible to receive fees from an unsuccessful plaintiff; however, such a situation represents the exception rather than the rule. A prevailing defendant may be awarded discretionary attorneys’ fees only if the plaintiff’s lawsuit was brought in bad faith or for harassment purposes, or was “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). The foregoing rules give force to the important policy of encouraging the bringing of Title VII cases to enforce the civil rights guaranteed therein. Through “fee-shifting” statutes in civil rights cases, Congress has created laws under which plaintiffs act as “private attorneys general.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). Courts have consistently recognized this purpose and interpreted the Act broadly to effectuate its remedial objectives. See, e.g., Coles v. Penny, 531 F.2d 609, 615 (D.C.Cir.1976) (cases cited). Balanced against this policy is an equally important policy — namely, one of encouraging settlement of disputes. This policy is no more evident than in Title VII cases. Courts have been guided by the principle that “the central theme of Title VII is ‘private settlement’ as an effective end to employment" }, { "docid": "18780547", "title": "", "text": "motion to reconsider; the case was reassigned to Judge Kocoras. On July 10, 1985, Judge Kocoras denied the motion to reconsider. The Commission appeals and Gekas cross-appeals. II A. Standard for “Prevailing Party’’ 42 U.S.C. § 1988 provides that “[i]n any action or proceeding to enforce a provision of section[] ... 1983 ... of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” For “ ‘purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief.’ ” Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) (quoting S.Rep. No. 1011, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S. Code Cong. & Ad. News 5908, 5912). When a case settles without a formal judicial resolution of plaintiff’s claims, the plaintiff is a prevailing party under § 1988 if, first, the plaintiff’s lawsuit is causally linked to the relief obtained, and, second, the defendant did not act wholly gratuitously, i.e., the plaintiff’s claims, if pressed, were not frivolous. Lovell v. City of Kankakee, 783 F.2d 95, 96-97 (7th Cir. 1986); Harrington v. DeVito, 656 F.2d 264, 266 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982). With respect to the first element, Gekas contends, and the Commission agreed in oral argument, that the question as to whether the plaintiff’s lawsuit is causally linked to the relief obtained is a question of fact. We concur. There is no “rule or principle that will unerringly distinguish a factual finding from a legal conclusion.” Pullman-Standard v. Swint, 456 U.S. 278, 288, 102 S.Ct. 1781, 1790, 72 L.Ed.2d 66 (1982). Nevertheless, as Justice O’Connor recently wrote for the Court, “the decision to label an issue a ‘question of law,’ a ‘question of fact,’ or a ‘mixed question of law and fact’ is sometimes as much a matter of allocation [of authority between the primary and the secondary decision-makers] as it is" }, { "docid": "6342423", "title": "", "text": "exceptions to the general rule of Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1973), that litigants must pay their own attorneys’ fees. A reasonable attorneys’ fee award is not mandatory, but is within the court’s discretion. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416 98 S.Ct. 694, 697, 54 L.Ed.2d 648 (1978). Congress has indicated, however, that a prevailing plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render an award unjust.” S.Rep. No. 94-1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S.Code Cong. & Ad.News, 5908, 5912 (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)); Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983). A plaintiff need not prevail through a judgment, however, to acquire “prevailing party” status. A plaintiff “prevails” where the case is settled by a consent decree that provides the plaintiff with a substantial vindication of rights. S.Rep. No. 94-1011, 94th Cong., 2d Sess. 5, reprinted in U.S.Code Cong. & Ad.News, 5908, 5912 (1976); Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). A number of circuit courts of appeals, including this circuit, have declared that a plaintiff is entitled to a fee award where it can be shown that his or her case acted as a “catalyst” in motivating the defendant to provide the primary relief sought. See, e.g., Sullivan v. Pennsylvania Dep’t of Labor, 663 F.2d 443 (3d Cir.1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 1716, 72 L.Ed.2d 138 (1982); Harrington v. DeVito, 656 F.2d 264 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982); Foster v. Boorstin, 561 F.2d 340 (D.C.Cir.1977). Prevailing party status is not limited to plaintiffs. A “prevailing” defendant may become eligible to receive fees from an unsuccessful plaintiff; however, such a situation represents the exception rather than the rule. A prevailing defendant may be awarded discretionary attorneys’ fees only if the plaintiff’s lawsuit was brought in bad faith or" }, { "docid": "12304995", "title": "", "text": "the County’s failure to implement the State’s valid, preexisting emergency shelter policy, the implementation of which was primarily the County’s responsibility. See, e.g., Toia v. Regan, 54 A.D.2d 46, 387 N.Y.S.2d 309, 312 (4th Dep’t), aff'd, 40 N.Y.2d 837, 387 N.Y. S.2d 832, 356 N.E.2d 276 (1976), appeal dismissed, 429 U.S. 1082, 97 S.Ct. 1087, 51 L.Ed.2d 528 (1977). The plaintiffs sought to compel the County defendants to comply with the shelter policy and the terms of the settlement agreement to which the County itself is a signatory ensure such compliance. Under these circumstances, Unger does not preclude an award of attorney’s fees against the County. It is the basic philosophy of § 1988 that fee liability runs with merits liability in the underlying action. Kentucky v. Graham, 473 U.S. 159, 170-71, 105 S.Ct. 3099, 3107-08, 87 L.Ed.2d 114 (1985). While it is true that this action was settled without a judicial determination of the merits, such a determination is not a necessary predicate to a fee award. “ ‘[PJarties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief.’ ” Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1979) (citation omitted). The County defendants do not challenge the district court’s determination that the plaintiffs prevailed against them. Indeed, these defendants agreed to provide substantial relief to the plaintiffs in the stipulation of settlement. Accordingly, the award of fees against the County is consistent with the philosophy of § 1988. 2. Joint and Several Liability The State defendant contends that if the plaintiffs have prevailed against him, he is responsible for no more than ten percent of the fee award. We are not persuaded. Given the State’s significant role in the events prompting this lawsuit, the district court was within its discretion in holding the State and County defendants jointly and severally responsible for the fee award. Focusing on the relative degree of culpability among the State and County defendants, the district court concluded that given the “interrelationship and overlap between their responsibilities and obligations" } ]

[ { "docid": "21023162", "title": "", "text": "” United States v. Martin, 869 F.2d 1118, 1121 (8th Cir.1989) (quoting United States v. Roenigk, 810 F.2d 809, 815 (8th Cir.1987)) (citation omitted). Because Lock was particularly well-qualified in analyzing questioned documents — having studied and taught internationally, written manuals, and practiced in the field for over two decades, performing several thousand comparisons — the district court did not abuse its discretion in finding Lock’s expert testimony to be reliable. See United States v. Paul, 175 F.3d 906, 910-11 (11th Cir.1999). Similarly, in light of Lock’s experience and expertise, we believe his testimony may be properly characterized as offering the jury knowledge beyond their own and enhancing their understanding of the evidence before them. See id. at 911. The district court thus committed no abuse of discretion, much less plain error, in admitting Lock’s testimony. II. MOTIONS FOR A CONTINUANCE Jolivet next argues that the district court erred in denying two of her motions for a continuance. According to Jolivet, her counsel had insufficient time to prepare for trial and therefore did not adequately represent her. We review for an abuse of discretion, mindful that continuances “generally are not favored and should be granted only when the party requesting one has shown a compelling reason.” United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir.1996). Jolivet’s trial was originally scheduled for January 4, 1999. In late December of 1998, Jolivet’s attorney filed a motion to withdraw as counsel. The district court granted the motion, appointed new counsel, and continued the trial until February 8, 1999. Apparently unaware that the court had already ruled on the issue, Jolivet subsequently filed a pro se motion asking that her trial remain scheduled for January 4. As she stated in her motion, any request for a further continuance was a strategy employed by the government to “drag [the case] as long as it takes for Defendant to grow weak and frustrated enough to agree to a plea offer.” (App. at 76.) Informing the court that she was “ready to proceed to trial,” Jolivet stated that she “would like to see trial proceed as" } ]

[ { "docid": "2965257", "title": "", "text": "SUBSTITUTION OF COUNSEL On November 29, 2001, four days before trial was set to begin, Prime filed a motion to substitute counsel, which the district court granted. The trial was continued to accommodate the newly-appointed counsel, Lee Covell (“Covell”), and after an additional stipulated continuance, was set for May 20, 2002. On May 9, 2002, at Prime’s request, Covell filed an ex parte motion to withdraw and substitute counsel. The following day the court held a closed-court inquiry without the prosecution to address this request. After hearing from both Prime and Covell, the court denied the motion. Four days before trial, Prime filed yet another motion for substitution of counsel. On the morning of trial, just before the proceedings were set to begin, John Rosel-lini (“Rosellini”), Prime’s privately retained attorney, appeared before the court requesting, pursuant to this motion, that he be substituted as counsel on the condition that a 120-day continuance be granted. The court denied this motion as well. Prime appeals the denial of both motions to substitute counsel. A. Standard of Review A district court’s refusal to substitute counsel is reviewed for abuse of discretion. United States v. Castro, 972 F.2d 1107, 1109 (9th Cir.1992). The district court’s ruling on a motion for a continuance is also reviewed for abuse of discretion. United States v. Garrett, 179 F.3d 1143, 1144-45 (9th Cir.1999) (en banc). B. Attempt to Remove Covell We must examine three elements when reviewing a district court’s denial of a substitution motion: 1) the timeliness of the motion; 2) the adequacy of the district court’s inquiry into the defendant’s complaint; and 3) whether the asserted conflict was so great as to result in a complete breakdown in communication and a consequent inability to present a defense. Castro, 972 F.2d at 1109. Given the judge’s recognition and proper assessment of each of these factors, we conclude that he did not abuse his discretion in denying the motion to remove Covell and substitute new counsel. 1. Timeliness In United States v. Garcia, we held that a motion made six days before the trial was scheduled to begin" }, { "docid": "2965258", "title": "", "text": "A district court’s refusal to substitute counsel is reviewed for abuse of discretion. United States v. Castro, 972 F.2d 1107, 1109 (9th Cir.1992). The district court’s ruling on a motion for a continuance is also reviewed for abuse of discretion. United States v. Garrett, 179 F.3d 1143, 1144-45 (9th Cir.1999) (en banc). B. Attempt to Remove Covell We must examine three elements when reviewing a district court’s denial of a substitution motion: 1) the timeliness of the motion; 2) the adequacy of the district court’s inquiry into the defendant’s complaint; and 3) whether the asserted conflict was so great as to result in a complete breakdown in communication and a consequent inability to present a defense. Castro, 972 F.2d at 1109. Given the judge’s recognition and proper assessment of each of these factors, we conclude that he did not abuse his discretion in denying the motion to remove Covell and substitute new counsel. 1. Timeliness In United States v. Garcia, we held that a motion made six days before the trial was scheduled to begin was not timely because the quantity and complexity of the discovery materials would have required a continuance. 924 F.2d 925, 926 (9th Cir.1991). In this case, the substitution motion was made ten days before trial, which given the quantity and complexity of the evidence and issues is not significantly different from the situation in Garcia. As the district judge noted, “it would be extremely unlikely that any new counsel could be appointed and be in a position to be prepared to go to trial in a mere 10 days from now.” We are not suggesting that any particular time period prior to trial is dispositive regarding this factor. Rather, timeliness may depend on the reason for substitution, and its strength. If, for example, counsel was indeed unprepared, the defendant might not have cause to raise unpreparedness until shortly before trial, when preparedness would be expected. 2. Adequacy of the Inquiry Prime was given a full and fair opportunity to explain why he felt substitution was necessary. After the court allowed Prime an opportunity to voice" }, { "docid": "15142926", "title": "", "text": "further research into fingerprint analysis would be welcome, “to postpone present in-court utilization of this bedrock forensic identifier pending such research would be to make the best the enemy of the good.” Llera Plaza, 188 F.Supp.2d at 573 (internal quotation omitted). B. In seeking to have his convictions vacated, Crisp also challenges the admissibility of the opinions of Currin, the handwriting expert, on grounds that are essentially idéntical to those on which he relied to make his case against fingerprint evidence. Crisp contends that, like fingerprinting identifications, the basic premise behind handwriting analysis is that no two persons write alike, and thus that forensic document examiners can reliably determine authorship of a particular document by comparing it with known samples. He maintains that these basic premises have not been tested, nor has an error rate been established. In addition, he asserts that handwriting experts have no numerical standards to govern their analyses and that they have not subjected themselves and their science to critical self-examination and study. 1. While the admissibility of handwriting evidence in the post-Ncm&erf world appears to be a matter of first impression for our Court, every circuit to have addressed the issue has concluded, as on the fingerprint issue, that such evidence is properly admissible. See United States v. Jolivet, 224 F.3d 902, 906 (8th Cir.2000) (citing Eleventh Circuit’s Paul decision and upholding admission of expert handwriting testimony); United States v. Paul, 175 F.3d 906, 911 (11th Cir.1999) (emphasizing “flexible” nature of district court’s gatek-eeping function, and noting that “the ability of the jury to perform the same visual comparisons as the experts cuts against the danger of undue prejudice from the mystique attached to experts” (internal quotation omitted)); United States v. Jones, 107 F.3d 1147, 1161 (6th Cir.1997) (upholding admission of expert handwriting testimony and observing that “just because the threshold for admissibility [of expert testimony] under Rule 702 has been crossed, a party is not prevented from challenging the reliability of the admitted evidence”); United States v. Velasquez, 64 F.3d 844 (3rd Cir.1995) (discussing standard methodology applied by handwriting analysts, and upholding admission of" }, { "docid": "20475586", "title": "", "text": "ORDER REGARDING DEFENDANT’S MOTION IN LIMINE LASNIK, District Judge. On October 9, 2001, Michael S. Prime (“Prime”) moved in limine to exclude expert testimony on handwriting identification at his trial or, in the alternative, for a hearing to determine the admissibility of such evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Prime’s motion brought into issue the testimony of Kathleen Storer (“Storer”), a forensic document examiner (“FDE” or “examiner”) working for the United States Secret Service in Washington, D.C. Storer was to testify for the government that, in her opinion, Prime’s handwriting appeared on counterfeit money orders and other documents. In its response to Prime’s motion, the United States insisted that expert testimony regarding handwriting analysis met the Daubert test and that no hearing was necessary. The Court held a Daubert hearing on March 18, 2002, and issued an order denying Prime’s motion on April 3, 2002. (Dkt.# 121.) This ruling provides the reasoning behind the Court’s conclusion that Storer’s testimony was properly included at trial. I. THE APPLICABLE STANDARD Until the Supreme Court issued its opinion in Daubert, the trial courts determined the admissibility of scientific evidence by applying the “general acceptance” test. Daubert, 509 U.S. at 585, 113 S.Ct. 2786. Under the “general acceptance” test, first articulated by the Court of Appeals of the District of Columbia in Frye v. United States, 293 F. 1013, 54 App.D.C. 46 (1923), expert opinion “based on a scientific technique [was] inadmissible unless the technique [was] ‘generally acceptable’ as reliable in the relevant scientific community.” Daubert, 509 U.S. at 584, 113 S.Ct. 2786. In Daubert, the Supreme Court held that this “rigid” requirement had been superceded by Rule 702 of the Federal Rules of Evidence. Id. at 588, 113 S.Ct. 2786. At the time, Rule 702 provided that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an" }, { "docid": "23223736", "title": "", "text": "issue at trial was the origin of certain packages with handwritten mailing labels, packages the government sought to connect to Velasquez?s co-conspirators. The government proposed to make the connection by way of forensic handwriting identification, and the District Court qualified an analyst from the Postal Inspection Service to testify to the handwriting identification. In response, Velasquez proffered his own expert-a law professor critical of handwriting analysis whose research, we held, qualified him as an expert in handwriting analysis-to testify that handwriting analysis in general is not reliable, and, in the alternative, that the particular identifications made by the government’s expert were unreliable. The District Court declined to admit Velasquez’s expert’s testimony, reasoning-.that “whether or not handwriting expertise is admissible in a courtroom is a legal question that was resolved against the defense when the court permitted [the government’s expert] to testify as a qualified expert in the field of handwriting analysis.” Velasquez, 64 F.3d at 846-47 (internal quotation marks omitted). • On appeal, we reversed. The central error in the District Court’s reasoning was its failure to follow the “axiom” that “the reliability of evidence goes ‘more to the weight than to the admissibility of the evidence.’ ” Id. at 848 (quoting United States v. Jakobetz, 955 F.2d 786, 800 (2d Cir.1992)). Following that principle, the substantive reliability question is as much for the jury (in the context of courtroom adversary testing) as it is for the court (in the context of a Daubert hearing). Consequently, we held that it was an error of law to fail to admit the testimony of a qualified opposing expert, provided that the testimony meets the usual criteria for admission under Rule 702. Moreover, in situations covered by Velasquez, the opposing expert’s testimony will ordinarily be helpful to the jury precisely because it is opposing -it will help the jury to evaluate the reliability of the opinion offered by the proponent expert. See Velasquez, 64 F.3d at 852 (holding that Velasquez’s expert “would have assisted the jury in determining the proper weight to accord [the government’s expert’s] testimony”). In sum, • Velasquez announces a" }, { "docid": "2965256", "title": "", "text": "The court reasonably concluded that any lack of standardization is not in and of itself a bar to admissibility in court. 5. General acceptance The court recognized the broad acceptance of handwriting analysis and specifically its use by such law enforcement agencies as the CIA, FBI, and the United States Postal Inspection Service. Given the comprehensive inquiry into Storer’s proffered testimony, we cannot say that the district court abused its discretion in admitting the expert handwriting analysis testimony. The district court’s thorough and careful application of the Daubert factors was consistent with all six circuits that have addressed the admissibility of handwriting expert testimony, and determined that it can satisfy the reliability threshold. See United States v. Crisp, 324 F.3d 261, 269-70 (4th Cir.2003); United States v. Mooney, 315 F.3d 54, 63 (1st Cir.2002); United States v. Jolivet, 224 F.3d 902, 906 (8th Cir.2000); United States v. Paul, 175 F.3d 906, 911 (11th Cir.1999); United States v. Jones, 107 F.3d 1147, 1161 (6th Cir.1997); United States v. Velasquez, 64 F.3d 844, 850-52 (3d Cir.1995). IV SUBSTITUTION OF COUNSEL On November 29, 2001, four days before trial was set to begin, Prime filed a motion to substitute counsel, which the district court granted. The trial was continued to accommodate the newly-appointed counsel, Lee Covell (“Covell”), and after an additional stipulated continuance, was set for May 20, 2002. On May 9, 2002, at Prime’s request, Covell filed an ex parte motion to withdraw and substitute counsel. The following day the court held a closed-court inquiry without the prosecution to address this request. After hearing from both Prime and Covell, the court denied the motion. Four days before trial, Prime filed yet another motion for substitution of counsel. On the morning of trial, just before the proceedings were set to begin, John Rosel-lini (“Rosellini”), Prime’s privately retained attorney, appeared before the court requesting, pursuant to this motion, that he be substituted as counsel on the condition that a 120-day continuance be granted. The court denied this motion as well. Prime appeals the denial of both motions to substitute counsel. A. Standard of Review" }, { "docid": "21106848", "title": "", "text": "the burden of proof cured any prejudice. See Duncan v. Stynchcombe, 704 F.2d 1213, 1216 (11th Cir.1983). VI. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED. . The district court noted that it had been willing to exclude Denbeaux's testimony from the first trial, but the court allowed it when the Assistant United States Attorney who initially tried the case asked that the court admit the testimony. . Courts have long received handwriting analysis testimony as admissible evidence. See United States v. Jones, 107 F.3d 1147, 1160-61 (6th Cir.1997) (handwriting expert's testimony admissible to show that signatures on numerous documents were defendant's); United States v. Velasquez, 64 F.3d 844, 848-50 (3d Cir.1995) (handwriting expert witness admissible). . Federal Rule of Evidence 702 provides: “If scientific, technical or other specialized knowledge will assist the court to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Fed.R.Evid. 702. .The Daubert factors include: (1) whether the theory or technique the expert employs is generally accepted in the scientific community; (2) whether the theory has been subject to peer review and publication; (3) whether the theory can and has been tested; and (4) whether the known or potential rate of error is acceptable. Daubert, 509 U.S. at 592-95, 113 S.Ct. 2786. . Federal Rule of Evidence 403 provides: \"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\" Fed.R.Evid. 403." }, { "docid": "2965255", "title": "", "text": "them no more than 6.5% of the time. While Kam’s study demonstrates some degree of error, handwriting analysis need not be flawless in order to be admissible. Rather, the Court had in mind a flexible inquiry focused “solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595, 113 S.Ct. 2786. As long as the process is generally reliable, any potential error can be brought to the attention of the jury through cross-examination and the testimony of other experts. A The existence and maintenance of standards controlling the technique’s operation The court recognized that although this area has not been completely standardized, it is moving in the right direction. The Secret Service laboratory where Storer works has maintained its accreditation with the American Society of Crime Laboratory Directors since 1998, based on an external proficiency test. Furthermore, the standard nine-point scale used to express the degree to which the examiner believes the handwriting samples match was established under the auspices of the American Society for Testing and Materials (“ASTM”). The court reasonably concluded that any lack of standardization is not in and of itself a bar to admissibility in court. 5. General acceptance The court recognized the broad acceptance of handwriting analysis and specifically its use by such law enforcement agencies as the CIA, FBI, and the United States Postal Inspection Service. Given the comprehensive inquiry into Storer’s proffered testimony, we cannot say that the district court abused its discretion in admitting the expert handwriting analysis testimony. The district court’s thorough and careful application of the Daubert factors was consistent with all six circuits that have addressed the admissibility of handwriting expert testimony, and determined that it can satisfy the reliability threshold. See United States v. Crisp, 324 F.3d 261, 269-70 (4th Cir.2003); United States v. Mooney, 315 F.3d 54, 63 (1st Cir.2002); United States v. Jolivet, 224 F.3d 902, 906 (8th Cir.2000); United States v. Paul, 175 F.3d 906, 911 (11th Cir.1999); United States v. Jones, 107 F.3d 1147, 1161 (6th Cir.1997); United States v. Velasquez, 64 F.3d 844, 850-52 (3d Cir.1995). IV" }, { "docid": "2965251", "title": "", "text": "degree these factors should be used to evaluate the reliability of expert testimony dictate a case-by-case review rather than a general pronouncement that in this Circuit handwriting analysis is reliable. As the Supreme Court concluded, we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue. Id. at 150, 119 S.Ct. 1167; see also United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir.2000) (quoting Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606, 618 (5th Cir.1999) (“Whether Dau-bert’s suggested indicia of reliability apply to any given testimony depends on the nature of the issue at hand, the witness’s particular expertise, and the subject of the testimony. It is a fact-specific inquiry.”) (internal citations omitted)). In this case, Storer was given 112 pages of writing known to be Prime’s, 114 pages of Hiestand’s, and 14 pages of Hardy’s. She was then asked whether the handwriting on 76 documents associated with the alleged conspiracy, such as envelopes, postal forms, money orders, Post-it notes, express mail labels and postal box applications, belonged to any of the co-conspirators. Storer “identified” Prime’s handwriting on 45 of the documents. Following the Daubert hearing, the district court issued a brief order concluding that the proposed forensic document exam ination testimony was reliable. After the conclusion of the trial, the district court issued a more detailed Order Regarding Defendant’s Motion in Limine, which thoroughly and specifically analyzed the reliability of Storer’s testimony with respect to each of the Daubert factors. See Prime, 220 F.Supp.2d 1203. 1. Whether the theory or technique can be or has been tested Handwriting analysis is performed by comparing a known sample of handwriting to the document in question to determine if they were written by the same person. The government and Storer provided the court with ample support for the proposition that an individual’s handwriting is" }, { "docid": "4349530", "title": "", "text": "\"generally accepted,” and not particularly reliable at that. The Court affirmed the district court’s exclusion of this testimony. See id. at 1179. . Following the Daubert decision, courts began to distinguish between a standard to be used for admitting scientific verses non-scientific testimony, although Fed.R.Evid. 702 does not make or require such a distinction. See e.g., United States v. Starzecpyzel, 880 F.Supp. 1027, 1029 (S.D.N.Y.1995) (\"Daubert standards do not apply to such skilled' witnesses”); see also Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 80 (1st Cir.1998) (\"Daubert furnishes the principle source of guidance” for determining the admissibility of scientific testimony). In fact, as noted by the Eleventh Circuit in United States v. Paul, 175 F.3d 906 (11th Cir.1999), many circuits were split on whether Daubert should also apply to nonscientific expert testimony. See 175 F.3d 906, 1999 WL 300884 at *3. On this question, some held that the application of Daubert was limited to scientific testimony, while others used Daubert's guidance to ensure the reliability of all expert testimony. See id. (comparing McKendall v. Crown Control Corp., 122 F.3d 803 (9th Cir.1997) (limiting the application of Daubert to the evaluation of scientific testimony); with Watkins v. Telsmith Inc., 121 F.3d 984 (5th Cir.1997) (holding that Daubert is not limited to scientific experts)). . To be sure, this concern could be equated with “grandfathering old irrationality.” D. Michael Risinger, Mark P. Denbeaux, Michael J. Saks, Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting ‘Expertise’, 137 U.Pa.L.Rev. 731, 771 n. 182 (1989). . According to Denbeaux’s article, co-authored with Saks and Risinger, Dean Wig-more bears a large measure of responsibility. See Risinger, Denbeaux, Saks, supra at 764-771. The validity of handwriting analysis has been assumed in Wigmore’s treatises, and virtually every standard evidence treatise since that point. See id. . Denbeaux's testimony was cited in United States v. Velasquez, 64 F.3d 844, 852 (3d Cir.1995) (concluding that the district court erred by refusing to allow defendant's expert document examiner to testify in response to the government’s document examiner); but see Paul, 175" }, { "docid": "15142927", "title": "", "text": "the post-Ncm&erf world appears to be a matter of first impression for our Court, every circuit to have addressed the issue has concluded, as on the fingerprint issue, that such evidence is properly admissible. See United States v. Jolivet, 224 F.3d 902, 906 (8th Cir.2000) (citing Eleventh Circuit’s Paul decision and upholding admission of expert handwriting testimony); United States v. Paul, 175 F.3d 906, 911 (11th Cir.1999) (emphasizing “flexible” nature of district court’s gatek-eeping function, and noting that “the ability of the jury to perform the same visual comparisons as the experts cuts against the danger of undue prejudice from the mystique attached to experts” (internal quotation omitted)); United States v. Jones, 107 F.3d 1147, 1161 (6th Cir.1997) (upholding admission of expert handwriting testimony and observing that “just because the threshold for admissibility [of expert testimony] under Rule 702 has been crossed, a party is not prevented from challenging the reliability of the admitted evidence”); United States v. Velasquez, 64 F.3d 844 (3rd Cir.1995) (discussing standard methodology applied by handwriting analysts, and upholding admission of expert handwriting testimony). 2. The Government’s handwriting expert, Thomas Currin, had twenty-four years of experience at the North Carolina SBI. On voir dire, and then on direct examination, he explained that all questioned documents that come into the SBI are analyzed first by a “questioned document examiner”; and that the initial analysis is then reviewed by another examiner. Currin discussed several studies showing the ability of qualified document examiners to identify questioned handwriting. In addition, he had passed numerous proficiency tests, consistently receiving perfect scores. Cur-rin testified to a consistent methodology of handwriting examination and identification, and he stated that the methodology “has been used not only at the level of state crime laboratories, but [also in] federal and international crime laboratories around the world.” When he was questioned regarding the standards employed in questioned document examination, Cur-rin explained that every determination of authorship “is based on the uniqueness of [certain] similarities, and it’s based on the quality and the skill and the training of the document examiner.” At trial, Currin drew the jury’s attention" }, { "docid": "21092421", "title": "", "text": "with the ACE-V method, Daubert emphasized that “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786. Under this analysis, Ma-hone’s argument regarding the lack of a set number of clues required for an ACE-V match must fail. We have rejected a similar argument that a handwriting analysis method impermissibly lacked a standard for the number of similarities required for a match. See United States v. Mooney, 315 F.3d 54, 63 (1st Cir.2002). Here, as in Mooney, such an argument “misunderstands Daubert to demand unassailable expert testimony.” See id. Not only did Mahone exercise his right to cross-examine Homer at trial regarding the alleged shortcomings in ACE-V, he had the benefit of an earlier Daubert hearing to challenge Homer and ACE-V. Ma-hone failed to offer his own expert or any other independent evidence revealing reliability concerns with ACE-V or Homer’s findings. The district court did not abuse its discretion. Mahone also raises an argument under Fed.R.Evid. 702(3), which requires that an expert witness have “applied the principles and methods reliably to the facts of the case.” Specifically, he argues that there are problems with the verification step of the ACE-V method as applied, because: 1) Homer stated that she had no idea whether the verifying examiner was “blinded” (had not reviewed her report before conducting his examination); and because 2) the government failed to produce the verifying examiner at trial (instead, Homer testified regarding this examiner’s background and experience). The district court did not abuse its discretion. Other federal courts have found ACE-V to be reliable under Daubert, while noting that verification in ACE-V may not be blinded. See United States v. Harvard, 117 F.Supp.2d 848, 853, 855 (S.D.Ind.2000) (“[T]he second expert may know from the outset that another examiner has already made the positive identification ----[Ljatent print identification is the very archetype of reliable expert testimony.”), aff'd, 260 F.3d 597 (7th Cir.2001); Mitchell, 365 F.3d at 239 (noting that although ACE-V verification may not be" }, { "docid": "2965248", "title": "", "text": "despite all of the evidence linking him to the various scams, including admissions that his fingerprints were on several items linked to the crimes, he was simply attempting to engage in legal entrepreneurial ventures. Prime also confirmed that he had previously been convicted of first and second degree theft, two counts of possession of stolen property in the second degree, and forgery. The jury found Prime guilty on all counts. Prime moved for a new trial based on the improper submission of extrinsic evidence to the jury. The district court denied the motion, and this appeal follows. Ill ADMISSIBILITY OF EXPERT TESTIMONY Prime moved in limine to exclude Storer’s expert testimony. The court held a Daubert hearing where both sides were allowed to offer voluminous materials and expert testimony regarding the reliability of the proposed testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). After careful consideration, the court denied the motion, see United States v. Prime, 220 F.Supp.2d 1203 (W.D.Wash. 2002), and Storer testified that, in her opinion, Prime’s handwriting appeared on counterfeit money orders and other incriminating documents. On appeal, Prime contends that the admission of expert testimony regarding handwriting analysis was unreliable under Daubert, and thus the court abused its discretion by allowing Storer to testify. Handwriting Analysis In Daubert, the Supreme Court set forth the guiding principle that “under [Federal Rule of Evidence 702] the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. at 589, 113 S.Ct. 2786. In order to assist the trial courts with this task, the Court suggested a flexible, factor-based approach to analyzing the reliability of expert testimony. Id. at 593-95, 113 S.Ct. 2786. Although not an exclusive list, these factors include: 1) whether a method can or has been tested; 2) the known or potential rate of error; 3) whether the methods have been subjected to peer review; 4) whether there are standards controlling the technique’s operation; and 5) the general acceptance of the method within the relevant community. Id." }, { "docid": "20475621", "title": "", "text": "other experts, the lack of standardization can hardly be said to require exclusion. Finally, it is clear to the Court that handwriting analysis has received broad acceptance. Law enforcement agencies such as Interpol, Scotland Yard, the Central Intelligence Agency, the Federal Bureau of Investigation and the United States Postal Inspection service use handwriting analysis. In addition, Storer listed 15 universities in the United States that offer Masters degrees in forensic science with courses that include document examination. As has already been noted, handwriting analysis has long been used in American courts. Even after Daubert and Kumho Tire, most district courts have ad mitted such evidence, albeit with limitations. Therefore, the general acceptance prong of Daubert is satisfied. In sum, the Court is persuaded of the reliability of Storer’s testimony; it was properly admitted and presented to the jury at trial. The Court acknowledges that had it required results of extensive scientific testing as exists in other fields, forensic document examination would come up short at the present time. However, the Daubert hearing made it very clear that the profession is in the process of making giant strides toward objective testing and standardization. The question before the Court, then, is whether in the interim period in which complete data are not available, the Court should exclude all FDE testimony as inadmissible. The Court is persuaded that, under Daubert, such testimony, including conclusions based on examinations, is reliable and admissible. Prime can present his own expert to dispute Storer’s findings and/or to attack the entire field of forensic document examination as illegitimate. However, the apparent recent trend to exclude FDE testimony is a result, the Court believes, of an exeessively-rigid application of Daubert. Since Daubert applies in both criminal and civil cases, such an approach may, one day, result in unfortunate consequences for a criminal defendant who is denied the ability to present the best evidence that he did not author an extortion demand or pen a forged signature. The Court declines to follow this trend on the record before it. V. CONCLUSION For the foregoing reasons, the Court denies the motion" }, { "docid": "20475599", "title": "", "text": "that such testimony was not based on science but on “technical, or other specialized knowledge.” See id. at 1041-43. After outlining what FDEs actually do, the Court held that forensic document examiner testimony was admissible, largely on the grounds that (1) the jury could visually confirm the first part of an FDE’s analysis in which the examiner identifies significant similarities and differences between genuine and challenged handwriting examples and (2) the other, unverifiable portion of analysis, in which the examiner draws inferences, was dependent on the first part, and the testimony was, in any event, subject to cross examination. See id. at 1044-47. After Kumho Tire all expert testimony, whether based on science or not, is subjected to the Daubert screen. Circuit courts, admonished by the Supreme Court to review a district court’s decision deferentially, generally have upheld district courts’ decisions. See, e.g., United States v. Jolivet, 224 F.3d 902, 906 (8th Cir.2000) (upholding district court’s decision to admit testimony of handwriting comparison expert); United States v. Hernandez, 42 Fed.Appx. 173 (10th Cir.2002) (upholding district court’s decision to allow testimony on similarities and differences, but disallowing testimony on conclusions) (unpublished disposition); United States v. Paul, 175 F.3d 906, 912 (11th Cir.1999) (upholding district court’s decision to exclude testimony of law professor critical of forensic document examination). But see United States v. Velasquez, 64 F.3d 844, 852 (3rd Cir.1995) (overturning decision to exclude testimony of same law professor). Among district courts, handwriting comparison testimony has fared unevenly since Kumho Tire. Much of the evidence presented to the courts is the same (and indeed, mirrors that presented to this Court). Yet, after applying Daubert, courts have reached varying conclusions as to the reliability of such testimony. In United States v. Gricco, 2002 WL 746037 (E.D.Pa.2002) (issued after the Daubert hearing in the case before the Court) the court found that testimony of an expert’s “opinion that there [was] a handwriting match” between the defendant’s exemplars and two government exhibits, including a handwritten list of materials allegedly used in manufacturing methamphetamine and a handwritten list of alleged laboratory supplies, was “sufficiently reliable for" }, { "docid": "20475600", "title": "", "text": "court’s decision to allow testimony on similarities and differences, but disallowing testimony on conclusions) (unpublished disposition); United States v. Paul, 175 F.3d 906, 912 (11th Cir.1999) (upholding district court’s decision to exclude testimony of law professor critical of forensic document examination). But see United States v. Velasquez, 64 F.3d 844, 852 (3rd Cir.1995) (overturning decision to exclude testimony of same law professor). Among district courts, handwriting comparison testimony has fared unevenly since Kumho Tire. Much of the evidence presented to the courts is the same (and indeed, mirrors that presented to this Court). Yet, after applying Daubert, courts have reached varying conclusions as to the reliability of such testimony. In United States v. Gricco, 2002 WL 746037 (E.D.Pa.2002) (issued after the Daubert hearing in the case before the Court) the court found that testimony of an expert’s “opinion that there [was] a handwriting match” between the defendant’s exemplars and two government exhibits, including a handwritten list of materials allegedly used in manufacturing methamphetamine and a handwritten list of alleged laboratory supplies, was “sufficiently reliable for purposes of Rule 702.” Id. at *1, *6. The court applied factors elucidated by the Third Circuit, In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 742 n. 8 (3d Cir.1994), which incorporate the Daubert analysis, and found that the case for admissibility was clear. In reaching its conclusion that handwriting analysis was “based on valid reasoning and reliable methodology,” the court noted the pedigree of such evidence in courtrooms across the country that had been established under the approving eye of the circuit courts. See id. at *4 (noting that “the Third Circuit and other circuit courts have allowed testimony regarding handwriting matches, and accepted such testimony” as reliable enough to be admissible). In contrast, in U.S. v. Saelee, 162 F.Supp.2d 1097 (D.Alaska 2001), the trial court ruled such evidence inadmissible. The questioned writing in the case involved address labels on packages, which the court presumed “would be considered a very small quantity of printing” and the defendant was an Asian whose first language was not known. Id. at 1104. In that case," }, { "docid": "23223735", "title": "", "text": "would obligate us to vacate Mitchell’s conviction and remand for a new trial at which their testimony would be heard. But our review of the record does not disclose that Mitchell’s experts were excluded or the scope of their testimony improperly limited. To the extent that the récord is even ambiguous, the onus was on Mitchell’s counsel to make a clear record, especially given the multiple, .nuaneed categories of testimony being discussed in the colloquies with the District Court on this matter. As in the previous section, we review the District Court’s decision to admit or exclude expert testimony for abuse of discretion, see In re TMI Litig., 193 F.3d at 666, but also note that an error of law-such as a failure to follow Velasquez-is an abuse of discretion, see Planned Parenthood v. Attorney Gen., 297 F.3d 253, 265 (3d Cir.2002). We begin with a discussion of Velasquez and then turn to the District Court’s rulings. B. Velasquez The defendant in Velasquez was tried on federal drug, firearms, and conspiracy charges. A fact in issue at trial was the origin of certain packages with handwritten mailing labels, packages the government sought to connect to Velasquez?s co-conspirators. The government proposed to make the connection by way of forensic handwriting identification, and the District Court qualified an analyst from the Postal Inspection Service to testify to the handwriting identification. In response, Velasquez proffered his own expert-a law professor critical of handwriting analysis whose research, we held, qualified him as an expert in handwriting analysis-to testify that handwriting analysis in general is not reliable, and, in the alternative, that the particular identifications made by the government’s expert were unreliable. The District Court declined to admit Velasquez’s expert’s testimony, reasoning-.that “whether or not handwriting expertise is admissible in a courtroom is a legal question that was resolved against the defense when the court permitted [the government’s expert] to testify as a qualified expert in the field of handwriting analysis.” Velasquez, 64 F.3d at 846-47 (internal quotation marks omitted). • On appeal, we reversed. The central error in the District Court’s reasoning was its" }, { "docid": "21106847", "title": "", "text": "shifted the burden of proof. “Prosecutorial misconduct requires a new trial only if [the court] find[s] the remarks (1) were improper and (2) prejudiced the defendants’ substantive rights.” United States v. Delgado, 56 F.3d 1357, 1368 (11th Cir.1995) (citing United States v. Cole, 755 F.2d 748, 767 (11th Cir.1985)). In his closing argument, the prosecutor stated: “Remember[J the defense has the resources and has the opportunity to produce evidence themselves, as you saw the defendant do.” Paul’s lawyer objected and the court overruled the objection stating, “He [the government] didn’t say you had a burden as I understood him. He merely said opportunity.” The government’s statement did not prejudice Paul’s substantive rights in shifting the burden of proof. The government told the jury that Paul had the opportunity to produce a handwriting expert to rebut Ziegler’s testimony — -not that Paul had any burden to produce a rebuttal expert. Additionally, the prosecutor, Paul’s lawyer and the court repeatedly reminded the jury that the government bore the burden of proof. Furthermore, the district court’s instruction on the burden of proof cured any prejudice. See Duncan v. Stynchcombe, 704 F.2d 1213, 1216 (11th Cir.1983). VI. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED. . The district court noted that it had been willing to exclude Denbeaux's testimony from the first trial, but the court allowed it when the Assistant United States Attorney who initially tried the case asked that the court admit the testimony. . Courts have long received handwriting analysis testimony as admissible evidence. See United States v. Jones, 107 F.3d 1147, 1160-61 (6th Cir.1997) (handwriting expert's testimony admissible to show that signatures on numerous documents were defendant's); United States v. Velasquez, 64 F.3d 844, 848-50 (3d Cir.1995) (handwriting expert witness admissible). . Federal Rule of Evidence 702 provides: “If scientific, technical or other specialized knowledge will assist the court to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”" }, { "docid": "21106842", "title": "", "text": "because it did not assist the jury’s understanding of the evidence. Properly qualified expert witnesses may testify regarding their specialized knowledge in a given field if it “would assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702; see also United States v. Rouco, 765 F.2d 983, 995 (11th Cir.1985) (arguing that counsel may use an expert if the expert’s testimony can offer something “beyond the understanding and experience of the average citizen”), cert. denied, 475 U.S. 1124, 106 S.Ct. 1646, 90 L.Ed.2d 190 (1986); United States v. Burchfield, 719 F.2d 356 (11th Cir.1983) (explaining that expert testimony is admissible where it is “the kind that enlightens and informs lay persons without expertise in a specialized field”). Paul has not challenged on appeal Ziegler’s qualifications as an expert on handwriting analysis. In fact, at the time of the trial, Ziegler: (1) was a full time handwriting examiner for 30 years; (2) was a member of four professional handwriting analysis organizations; (3) established both the Secret Service’s and the Naval Investigative Service’s “questioned document” laboratories; (4) lectured and taught extensively in the field of handwriting analysis; and (5) trained new “questioned document” examiners for several law enforcement organizations. Consequently, we hold that Ziegler’s expert testimony could assist the jury. S. Testimony More Probative than Prejudicial Paul asserts that the district court should have excluded Ziegler’s testimony under Federal Rule of Evidence 403 as prejudicial because he claims the jury would have believed that Ziegler’s analysis was scientific when it was not. Paul, however, cites no authority excluding testimony from an expert handwriting examiner on the basis that it sounded scientific, but was not. To the contrary, the Sixth Circuit in United States v. Jones concluded that the ability of the jury to perform the same visual comparisons as the expert “cuts against the danger of undue prejudice from the mystique attached to ‘experts.’ ” 107 F.3d 1147, 1160-61 (6th Cir.1997). As was true in Jones, Ziegler specifically identified points of comparison that he recognized between the writing of the extortion note and the" }, { "docid": "8911498", "title": "", "text": "Mr. Cummiskey’s testimony shall not be barred for these violations of Rule 26(a). Reed, 165 F.R.D. at 430; In re Paoli Railroad Yard PCB Litigation, 35 F.3d at 792-93. Mr. Cummiskey shall be required to provide the missing information within twenty days. Fed.R.Civ.P. 37 (allowing the court to fashion remedies for violations of R. 26(a)). b. Daubert In United States v. Velasquez, 64 F.3d 844, 850 (3d Cir.1995), the Third Circuit recognized that some courts, including the Second Circuit, have held that the Daubert tests are too stringent to apply when considering the admission of expert testimony by accountants. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53 (2d Cir.1993). However, the Third Circuit has neither implicitly nor explicitly adopted such a ruling. In Velasquez, the court declined to follow the Second Circuit and “in an exercise of caution,” reviewed a handwriting expert’s proposed testimony under the Daubert analysis. 64 F.3d at 850. Further, although the expert testimony before the Supreme Court in Daubert was of a scientific nature, the Court did not limit its analysis to the scientific context. Rather, it recognized that Rule 702 does apply to “technical, or other specialized knowledge.” Daubert, 509 U.S. at 590 at n. 8, 113 S.Ct. at 2795 at n. 8. Accordingly, this court will examine the admission of Mr. Cummiskey’s report and testimony under the Daubert factors. See also Tyus v. Urban Search Management, et al., 102 F.3d 256, 263 (7th Cir.1996), cert, denied, — U.S. —, 117 S.Ct. 2409, 138 L.Ed.2d 175 (1997). Sara Lee’s first argument against the testimony and report of Mr. Cummiskey is that he lacks the requisite academic and/or practical knowledge to calculate LCC’s alleged business damages and lost future profits. Motion at 52-55. Admittedly, Mr. Cummiskey has no specific expertise in calculating foreign market share, consumer preference, consumption rates, or market competition. See Cummiskey CV. However, the requirements of qualifying as an expert are flexible and rigid application of such has been eschewed. Daubert, 509 U.S. at 594, 113 S.Ct. at 2797; In re Paoli Railroad Yard PCB Litigation, 35 F.3d at 741. Thus," } ]

[ { "docid": "22348579", "title": "", "text": "Torts (4th ed.) § 480. Here the evidence as to the cause of petitioner’s injuries was admittedly available, and it would seem to follow that since what actually happened could have been adjudicated, it should have been adjudicated. Therefore, I would affirm the judgment of the court below but modify its mandate so that there may be a new trial on this issue and an adjudication based upon an adequate determination. While a court room is not a laboratory for the scientific pursuit of truth, a trial judge is surely not confined to an account, obviously fragmentary, of the circumstances of a happening, here the meagre testimony of Johnson, when he has at his command the means of exploring them fully, or at least more fully, before passing legal judgment. A trial is not a game of blind man’s buff; and the trial judge — particularly in a case where he himself is the trier of the facts upon which he is to pronounce the law — need not blindfold himself by failing to call an available vital witness simply because the parties, for reasons of trial tactics, choose to withhold his testimony. Federal judges are not referees at prize-fights but functionaries of justice. See Herron v. Southern Pacific Co., 283 U. S. 91, 95; Quercia v. United States, 289 U. S. 466, 469. As such they have a duty of initiative to see that the issues are determined within the scope of the pleadings, not left to counsel’s chosen argument. See New York Central R. Co. v. Johnson, 279 U. S. 310, 318. Just as a Federal judge may bring to his aid an auditor, without consent of the parties, to examine books and papers, hear testimony, clarify the issues, and submit a report, in order to “render possible an intelligent consideration of the case by court and jury,” Ex parte Peterson, 253 U. S. 300, 306, and in so doing has the power to tax the expense as costs “necessary to the true understanding of the cause on both sides,” Whipple v. Cumberland Cotton Co., 3 Story 84," } ]

[ { "docid": "4904119", "title": "", "text": "to the terms of the September 7, 1977 Memorandqm^VWe take judicial notice of the severe fiscal pressures facing the City at this time^These pressures made it impossible for the City to afford fund withholding while it litigated the merits of HEW’s charges. For all practical purposes, the City was at the mercy of the federal authorities. These circumstances distinguish this case from Citizens Legal Defense Alliance, Inc. et al.. v. HEW, 76-C-1614, 76-C-2472 (C.D. Cal. June 24, 1977). That case involved a similar agreement between HEW and the Los Angeles Board of Education. Acknowledging that it had “jurisdiction to decide the Title VI claim,” {id. at 18), the court found no violation of the procedural requirements of Title VI. Id. at 20-21. It specifically ruled that “the Plan was voluntarily enacted by the District.” Id. at 20. We offer no hard and fast rule as to when the' boundary between “voluntary” and “non-voluntary” is crossed. In the absence of administrative regulations, this judgment requires an inquiry into the totality of circumstances by the reviewing court on a case by case basis. Promulgation of adequate administrative regulations will avoid the necessity for future inquiries of this kind. Our finding of non-voluntary compliance in this case is based upon a number of considerations. These include the contemporaneous ESAA fund cut-offs by HEW, the enormous amount of federal aid at stake, the inability of the City to survive the threat of fund withholding while it litigated the matter, the nature of the rights affected, and the ease with which some form of public participation could have been provided for. No emergency in this case demanded unusually speedy action by HEW. I Title VI provides for informal procedures when compliance is voluntary and formal procedures when compliance is achieved by a fund cut-off. \\ In this case, where there was neither “voluntary” compliance nor an attempted fund cut-off, but rather “non-voluntary” compliance, the rigid Title VI dichotomy does not make clear what procedures are required. In view of the scant legislative history, an inquiry into the spirit as well as the letter of the" }, { "docid": "4904071", "title": "", "text": "in the city school system. Title VI mandates that drastic governmental action of this nature that affects the lives of hun dreds of thousands of citizens cannot result solely from secret, informal negotiations conducted exclusively by a handful of government officials. HEW regulations must provide for some form of public participation in such critical decisionmaking by those whose rights are directly affected. Accordingly, we vacate the September 7, 1977 Memorandum of Understanding and remand to HEW so that it can formulate and implement appropriate procedures. See, e. g., Addison v. Holly Hill Fruit Producers, 322 U.S. 607, 619-21, 64 S.Ct. 1215, 1222-23, 88 L.Ed. 1488 (1944); Douglas v. Hampton, 512 F.2d 976, 988-89 (D.C. Cir. 1975). To avoid disruption of the school system, the status of those already assigned under the Agreement will be maintained. Until this matter is resolved all assignments after April 7, 1978, will be made as if the Agreement had never become effective. In view of this holding, we decline at this juncture to rule on the constitutionality of the Memorandum of Understanding. Such a ruling would be premature since the terms of the Agreement may well be altered when, as Title VI requires, the views of the non-negotiating parties and the public are considered. I. PROCEEDINGS BEFORE THIS COURT A. Parties This suit was brought originally by six community school boards (1, 18, 20, 25, 26, and 29), individual principals and teachers against HEW and the Board of Education. Intervention as plaintiffs was granted to the United Federation of Teachers (UFT) and two teachers in the New York City school system; the Council of Supervisors and Administrators of the City of New York, Local 1, SASOC, AFL-CIO (CSA), plaintiffs in the related case of Zuckerman v. Aiello, 77-C-2278; and Community School Boards 11, 21 and 24. Also granted were motions to intervene as defendants by the Coalition of Concerned Black Educators, an unincorporated association, and four Black teachers, three of whom were reinstated and assigned in September 1977 pursuant to the September 7, 1977 Memorandum of Understanding; and Ronald Ross, a Black teacher in the" }, { "docid": "2711219", "title": "", "text": "the relation of the parties and the circumstances under which it was executed. Particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Atwater & Co. v. Panama R.R. Co., 246 N.Y. 519, 524, 159 N.E. 418 (1927). It is the court’s responsibility to determine if the language of the contract is ambiguous. If it is not, extrinsic evidence is inadmissible to explain or vary the terms of the agreement. Mallad Constr. Corp., supra, 344 N.Y.S.2d at 930, 298 N.E.2d at 99; Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N.Y. 342, 349, 126 N.E.2d 271 (1955). Upon reviewing the license agreement in its entirety, with the foregoing principles in mind, it is clear that the parties intended the agreement to apply in the event of termination by expiration as well as by any other form of termination. In reaching this conclusion, I am in accord with the New York court which has considered the same question regarding the identical restrictive covenant. Carvel Corp. v. Rail, 117 A.D.2d 485, 503 N.Y.S.2d 406 (2nd Dept.1986). The Second Department said: “It is true, as the defendant notes, that the words ‘termination’ and ‘expiration’, or forms thereof, appear in several contexts throughout the agreement. For example, Carvel was entitled to terminate its licensee’s rights under the contract in the event of a breach by the latter. Also, the contract expressly provided that in the event of ‘expiration, cancellation or termination’, Carvel was entitled to immediate possession of its property and prompt payment by the licensee of all open accounts. In these contexts, it might be argued that the use of the word ‘termination’ was intended to describe an end of the agreement’s existence occurring prior to the time fixed by the parties at its inception. However, another clause of the agreement provided that the licensee was to discontinue use of the Carvel name, trademarks and know-how upon ‘expiration or any earlier termination’ of the agreement, and it can be inferred from" }, { "docid": "4904074", "title": "", "text": "the filing of a notice of appeal and a motion with the Court of Appeals to extend the stay. Subsequent motions to reconsider the court’s determination were rejected. There is a clear right and obligation of authorities to gather data in order to determine whether there has been unlawful discrimination. See United States v. Board of Education et a1. (E.D.N.Y. 76-C-861) (Order of July 15, 1976), appeal dismissed as moot, 543 F.2d 1 (2d Cir. 1976). C. Hearing on Due Process — Title VI Issue On February 23, 1978, the parties were requested to assist the court in deciding whether rights to constitutional and statutory due process were abridged by the failure to afford interested persons an opportu nity to participate in the administrative proceedings that resulted in the Memorandum of Understanding. A hearing on this question was held on March 7, 1978. At that hearing the parties were afforded an opportunity for full argument and submission of any relevant evidence. The Board of Education offered various documents and supplemented its submission by letter. Other parties relied upon the uncontested documents already on file in this court and subsequent affidavits. The court’s March 7, 1978 decision on the threshold procedural question obviated the need to decide other issues. Accordingly, all motions for summary judgment or injunctive relief were mooted pending a further determination by HEW. II. FACTS The September 7, 1977 Memorandum of Understanding culminated a year old dispute between HEW and the New York City Board of Education. The controversy has spawned a complicated legal tangle, including one other major law suit, Board of Education of the City School District of the City of New York, et a1. v. Califano, et al., 77-C—1928, decided by this court on November 18, 1977. In that case, the Board of Education sued HEW, claiming that HEW had illegally cut-off some $17.5 million— subsequently reduced to $3.8 million — of Emergency School Aid Act (ESAA) funding, 20 U.S.C. §§ 1601 et seq., needed by the city to help integrate its schools. After extensive hearings, we determined that HEW had failed to adhere to" }, { "docid": "7519624", "title": "", "text": "on the part of the Board. See Caulfield I, 583 F.2d at 609 n.5. The Board itself on April 22, 1977, suggested affirmative efforts to equalize employment opportunities. See id. at 608. OCR rejected this proposed compliance plan but further negotiations resulted in the promulgation of the September Memorandum of Understanding challenged in this lawsuit. The Memorandum establishes a three-year plan to comply with Title VI and Title IX through affirmative action. We have set out in the margin key provisions of the agreement as they are reported in Judge Weinstein’s memorandum opinion, 486 F.Supp. 862 (D.C.). THE PROCEEDINGS BELOW In appellants’ complaint they alleged that HEW lacked Title VI jurisdiction to investigate the Board’s employment practices because under 42 U.S.C. § 2000d-3 HEW can take such action only with respect to programs in which providing employment is a “primary objective of the Federal financial assistance.” They further alleged that the agreement’s remedial measures are impermissible absent a formal administrative or judicial finding of intentional discrimination and that the evidence does not support a finding of intentional discrimination. Cf. Lora v. Board of Education, 623 F.2d 248 (2d Cir. 1980) (intentional discrimination required to make out a violation of Title VI). Appellants also contended that the Memorandum, by requiring teacher assignments on the basis of race, established a “quota system” in violation of a number of statutes, including Titles VI and VII of the Civil Rights Act of 1964, and the fifth and fourteenth amendments. The district court held that HEW had jurisdiction to investigate and seek compliance under the authority of 45 C.F.R. § 80.3(c)(3) (1979), a Title VI regulation authorizing oversight of the employment practices of a recipient of federal funds when such practices have a discriminatory impact upon direct beneficiaries of the federal funds, in this case, the students themselves. Here, HEW had alleged that the Board’s employment practices have such an effect because discrimination in teacher hiring and assignment has deprived students of equal educational opportunity both by reinforcing the racial identifiability of schools and, in some cases, by resulting in the assignment of less qualified" }, { "docid": "4904069", "title": "", "text": "hundreds of millions of dollars, must conduct themselves with scrupulous regard for procedural protections. Not only must the result be just, but, if the people are to retain their faith in their government, the means used to achieve the result must be fair. See Friendly, “Some Kind of Hearing,” 123 U.Pa.L.Rev. 1267, 1279-80 (1975). Respect for the effective administration of government requires that before we address the substantive issue we permit the executive branch, through its appropriate administrative agency, to rectify any procedural error by granting a proper hearing. The reason is clear. Upon hearing the parties, modification may result that will vitiate the need for further litigation. It is obviously more desirable that those with presumed expertise, who are charged with the administration of federal funding programs, rather than the courts, make administrative decisions wherever possible. The fact that the parties wish to sidestep the procedural question is not binding on the court. Cf. Reid v. Board of Education of New York, 453 F.2d 238, 242 n. 7 (2d Cir. 1971). Federal judges are not automatons, slot machines, who return the judgment selected if the parties agree on which button they would push. Once the jurisdiction of the court is invoked, the court has an obligation to decide in accordance with the law, even if the result satisfies none of the parties. Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N.Y. 342, 349, 126 N.E.2d 271 (1955) (Fuld, J.). As Mr. Justice Frankfurter remarked in another context: A trial is not a game of blind man’s buff; and the trial judge — particularly in a case where he himself is the trier of the facts upon which he is to pronounce the law— need not blindfold himself . Johnson v. United States, 333 U.S. 46, 54, 68 S.Ct. 391, 395, 92 L.Ed. 468 (1948) (dissenting). We find that the defendants have failed to comply with the procedural requirements of Title VI. Although the “Memorandum of Understanding” does not call for the termination of funds, it conditions further funding on the achievement of results that will require sweeping changes" }, { "docid": "4904140", "title": "", "text": "a hearing might be conducted by an administrative judge using procedures developed for approving settlement of class actions. At class action settlement hearings conducted by a court, the judge “should learn the circumstances surrounding the negotiations and hear not only from the parties and counsel who participated in the negotiations but also from those, if any, who were left out of the negotiations.” 1 Moore’s Federal Practice, Part 2, Manual for Complex Litigation — 1.46 Settlement of Class Actions: Criteria and Procedure in Approving Settlements of Class Actions — Part I — Procedures at 63 (1977) (emphasis added). B. Avoidance of Constitutional Questions This litigation raises serious constitutional questions. As the Supreme Court recently noted, three factors are of principal relevance in determining what process is constitutionally due: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). See Board of Curators of the University of Missouri et al. v. Horowitz, - U.S. -, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978). These factors are at least arguably present in this case, lending support to the claim that an administrative hearing is mandated by the Constitution. In keeping with long-established principle, we rule only on the procedural requirements of Title VI, and not on the constitutional issue. Statutory interpretation in this case obviates the need to pass on questions of constitutionality. See, e. g., Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 1806, 10 L.Ed.2d 1000 (1963). IV. CONCLUSION In view of our ruling that HEW has not properly complied with procedures required by Title VI, we remand this matter to HEW for further proceedings in accordance with this opinion. The September 7, 1977 Memorandum of Understanding is set aside. Any reassignments" }, { "docid": "23534770", "title": "", "text": "side introduced any parol evidence before the district court on the meaning of this provision, and although the proper interpretation of paragraph 11 was in issue below, the district court did not express any view on the question. We thus write on a clean slate. See Rentways Inc. v. O’Neill Milk & Cream Co., 308 N.Y. 342, 349, 126 N.E.2d 271, 274 (1956). The contract provides that New York law governs. Under New York law an interpretation of a contract that has “the effect of rendering at least one clause superfluous or meaningless ... is not preferred and will be avoided if possible.” Garza v. Marine Transport Lines, Inc., 861 F.2d 23, 27 (2d Cir.1988). Rather, an interpretation that “gives a reasonable and effective meaning to all terms of a contract is generally preferred to one that leaves a part unreasonable or of no effect.” Rothenberg v. Lincoln Farm Camp, Inc., 755 F.2d 1017, 1019 (2d Cir.1985). See, e.g., Corhill Corp. v. S.D. Plants, Inc., 9 N.Y.2d 595, 599, 217 N.Y.S.2d 1, 3, 176 N.E.2d 37, 38 (1961); Muzak Corp. v. Hotel Taft Corp., 1 N.Y.2d 42, 46, 150 N.Y.S.2d 171, 174, 133 N.E.2d 688 (1956); Fleischman v. Furgueson, 223 N.Y. 235, 239, 119 N.E. 400, 401 (1918). Thus, when interpreting this contract we must consider the entire contract and choose the interpretation of paragraph 11 “which best accords with the sense of the remainder of the contract.” Rentways, Inc., 308 N.Y. at 347, 126 N.E.2d at 273. We find that Galli and Yeager’s interpretation of paragraph 11 as creating only a pre-closing remedy for the buyer best accords with the remainder of the contract because it does not make paragraphs 13, 9(k) and 7 superfluous. Accordingly, we hold that Metz is not entitled to suspend payments pending determination of the damages suffered for breach of warranty. b. Gulf Oil Settlement The sellers warranted that, between the June 30 balance sheet and the December 27 closing, they had not “settled or agreed to settle any litigation, action or proceeding before any court ... relating to Sellers or their property.” Galli" }, { "docid": "23227963", "title": "", "text": "a term is ambiguous is a matter of law for the court to resolve. W.W.W. Assocs., 77 N.Y.2d at 162, 566 N.E.2d at 642, 565 N.Y.S.2d at 443. If the court identifies an ambiguity, the controlling meaning is determined by application of principles of interpretation and construction under the controlling state law. See, e.g., Wallace v. 600 Partners Co., 86 N.Y.2d 543, 548, 658 N.E.2d 715, 717, 634 N.Y.S.2d 669, 671 (1995); Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N.Y. 342, 347, 126 N.E.2d 271, 273 (1955). Then, only if necessary, extrinsic evidence of the parties’ intent is employed. See W.W.W. Assocs., 77 N.Y.2d at 163, 566 N.E.2d at 642, 565 N.Y.S.2d at 443. It is a generally accepted proposition that where the terms of a writing are plain and unambiguous, there is no room for interpretation or construction.... However, this formulation may be technically overbroad, in the sense that the interpretation of a contract requires an initial determination of whether the contract is ambiguous ... and this determination itself involves an assessment of the contract’s meaning. Richard A. Lord, 11 Williston on Contracts § 30:4 (4th ed.2008). At least some principles of interpretation therefore ordinarily guide the inquiry into whether a contract term is ambiguous. New York courts conducting the inquiry typically apply three rules of interpretation. First, they determine ambiguity by “ex-amin[ing] the entire contract and considering] the relation of the parties and the circumstances under which it was executed,” interpreting “Particular words ... not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby.” Kass v. Kass, 91 N.Y.2d 554, 566, 696 N.E.2d 174, 180-81, 673 N.Y.S.2d 350, 356-57 (1998) (quoting Atwater & Co. v. Panama R.R. Co., 246 N.Y. 519, 524, 159 N.E. 418, 419 (1927)); see also Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co., 375 F.3d 168, 173 (2d Cir.2004) (“An ambiguity exists where the terms of a contract could suggest more than one meaning when viewed objectively by a reasonably intelligent person who has" }, { "docid": "18457358", "title": "", "text": "quite clear in permitting GE to limit its liability in this manner.’ PP&L argues that the language of Supplement 16 is not specific enough to absolve GE from liability for its own negligence. In particular, PP&L relies on those cases holding that though parties are permitted to contractually abrogate liability for negligent conduct, it must be done in clear and unequivocal language. We agree with PP&L that the law requires such exculpatory clauses to be precisely worded. But we find it difficult to imagine a clause much clearer than the one involved here: “in no event, . • . . as a result of . alleged negligence . . . shall the Seller be liable for damages for loss of profits . . . [or] cost of purchased or replacement power . . .” We thus think it plain that the language of the Limitation of Liability clause precludes any recovery for cost of replacement power or lost profits. The case principally relied upon by PP&L, Willard Van Dyke Prod., Inc. v. Eastman Kodak Co., 12 N.Y.2d 301, 239 N.Y.S.2d 337, 189 N.E.2d 693 (1963), is readily distinguishable. In Willard the clause relied upon by defendant to insulate it from liability made no mention of the word “negligence” at all. A clause not even using the word “negligence” cannot be equated with the language used here. Despite the clear language of Supplement 16, PP&L advances a number of further arguments that the limitation of liability clause does not preclude liability for cost of replacement power or breach of implied warranty. PP&L’s first additional argument springs from two venerable canons of contractual interpretation. We quarrel with neither canon and state them as follows: a) Any ambiguity in the terms of an agreement should be construed against the party which drafted the language. Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N.Y. 342, 126 N.E.2d 271 (1955); and b) Where a party seeks to avoid liability for damages otherwise attributable to him, the contractual language implementing such purpose must be clear and precise. Willard Van Dyke Productions, Inc. v. Eastman Kodak" }, { "docid": "4904075", "title": "", "text": "parties relied upon the uncontested documents already on file in this court and subsequent affidavits. The court’s March 7, 1978 decision on the threshold procedural question obviated the need to decide other issues. Accordingly, all motions for summary judgment or injunctive relief were mooted pending a further determination by HEW. II. FACTS The September 7, 1977 Memorandum of Understanding culminated a year old dispute between HEW and the New York City Board of Education. The controversy has spawned a complicated legal tangle, including one other major law suit, Board of Education of the City School District of the City of New York, et a1. v. Califano, et al., 77-C—1928, decided by this court on November 18, 1977. In that case, the Board of Education sued HEW, claiming that HEW had illegally cut-off some $17.5 million— subsequently reduced to $3.8 million — of Emergency School Aid Act (ESAA) funding, 20 U.S.C. §§ 1601 et seq., needed by the city to help integrate its schools. After extensive hearings, we determined that HEW had failed to adhere to constitutionally mandated procedure and statutory standards and remanded the case to HEW for further consideration. In this case, HEW and the Board of Education are positioned not as adversaries, but as co-defendants, united in opposition against the claims of a substantial number of the teachers, supervisors and administrators of the New York City school system. In spite of the shifting alignments of the parties, the facts of the two law suits are, as might be expected, intimately related. A. Chronological History 1. November 9, 1976 — OCR’s Letter to Chancellor Anker The immediate source of this litigation dates to a November 9, 1976 letter sent by OCR to Chancellor Irving Anker, operating head of New York City’s school system. Based on an investigation of civil rights compliance in New York City under Title VI of the 1964 Civil Rights Act and Title IX of the Education Amendments of 1972, it specified areas of alleged noncompliance with the provisions of both statutes. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d) provides" }, { "docid": "20021193", "title": "", "text": "that it shall be construed and interpreted according to New York law. It is undisputed that the contract, although the subject of negotiations, is in the general form originally prepared by counsel for Litton. Litton’s three contentions must, therefore, be determined under New York law, Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953); Tele-Controls, Inc. v. Ford Industries, Inc., 388 F.2d 48 (7 Cir. 1967); Barzda v. Quality Courts Motel, Inc., 386 F.2d 417 (5 Cir. 1967); Lebeck v. William A. Jarvis, Inc., 145 F.Supp. 706 (E.D.Pa.1956), modified, 250 F.2d 285 (3 Cir. 1957), and in the light of the fact that as the draftsman the agreement will be construed strictly against it. Mutual Life Ins. Co. v. Hurni Co., 263 U.S. 167, 44 S.Ct. 90, 68 L.Ed. 235 (1923); Rentways, Inc. v. O’Neill Milk and Ice Cream Co., 308 N.Y. 342, 126 N.E.2d 271 (1955); Broadway Realty Co. v. Lawyers’ Title Ins. & Trust Co., 226 N.Y. 335, 123 N.E. 754 (1919); Janos v. Peck, 21 A.D.2d 529, 251 N.Y.S.2d 254, aff’d, 15 N.Y.2d 509, 254 N.Y.S.2d 115, 202 N.E.2d 560 (1964); Sklar Door Corp. v. Locoteta Homes, 33 Misc.2d 299, 224 N.Y.S.2d 294 (Sup.Ct.1961); City of New York v. Columbus Circle Apartments, Inc., 29 Misc.2d 763, 216 N.Y.S.2d 993 (Sup.Ct. 1961). Two documents are involved, because at the September 21, 1969 closing, pursuant to a provision in the July 12, 1962 contract, a separate written undertaking respecting assumption of liabilities was furnished by Litton. Since, however, the language of this separate undertaking is identical in all material respects with the July 12, 1962 contract, we will refer hereafter only to the latter. The contract is entitled Agreement and Plan of Reorganization, and it follows a familiar general outline for the acquisition of a going business. After setting forth the consideration flowing from each side (Section 1) and fixing a closing date (Section 2) it sets forth the representations and warranties of M-T (Section 3), and lists conditions precedent to Litton’s obligation to close (Section 7). It provides for post-closing indemnification by M-T of" }, { "docid": "4904070", "title": "", "text": "not automatons, slot machines, who return the judgment selected if the parties agree on which button they would push. Once the jurisdiction of the court is invoked, the court has an obligation to decide in accordance with the law, even if the result satisfies none of the parties. Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N.Y. 342, 349, 126 N.E.2d 271 (1955) (Fuld, J.). As Mr. Justice Frankfurter remarked in another context: A trial is not a game of blind man’s buff; and the trial judge — particularly in a case where he himself is the trier of the facts upon which he is to pronounce the law— need not blindfold himself . Johnson v. United States, 333 U.S. 46, 54, 68 S.Ct. 391, 395, 92 L.Ed. 468 (1948) (dissenting). We find that the defendants have failed to comply with the procedural requirements of Title VI. Although the “Memorandum of Understanding” does not call for the termination of funds, it conditions further funding on the achievement of results that will require sweeping changes in the city school system. Title VI mandates that drastic governmental action of this nature that affects the lives of hun dreds of thousands of citizens cannot result solely from secret, informal negotiations conducted exclusively by a handful of government officials. HEW regulations must provide for some form of public participation in such critical decisionmaking by those whose rights are directly affected. Accordingly, we vacate the September 7, 1977 Memorandum of Understanding and remand to HEW so that it can formulate and implement appropriate procedures. See, e. g., Addison v. Holly Hill Fruit Producers, 322 U.S. 607, 619-21, 64 S.Ct. 1215, 1222-23, 88 L.Ed. 1488 (1944); Douglas v. Hampton, 512 F.2d 976, 988-89 (D.C. Cir. 1975). To avoid disruption of the school system, the status of those already assigned under the Agreement will be maintained. Until this matter is resolved all assignments after April 7, 1978, will be made as if the Agreement had never become effective. In view of this holding, we decline at this juncture to rule on the constitutionality of the Memorandum" }, { "docid": "2711218", "title": "", "text": "York General Business Law. Discussion Where subject matter jurisdiction is founded on diversity of citizenship, the court must follow the choice-of-law rules of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). “Under New York law, great deference is to be given a contract’s designation of the law that is to govern disputes arising from contracts.” Zerman v. Ball, 735 F.2d 15, 20 (2d Cir.1984). Paragraph TWENTY EIGHTH of the license agreement at issue states that “any and all performance thereunder, or breach thereof shall be interpreted, governed and construed pursuant to the laws of the State of New York.” New York law therefore governs this action. Under New York law, the intent of the parties is determined, where possible, by the plain language of the contract. Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 344 N.Y.S.2d 925, 930, 298 N.E.2d 96, 99 (1973). In interpreting a contract [t]he court should examine the entire contract and consider the relation of the parties and the circumstances under which it was executed. Particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Atwater & Co. v. Panama R.R. Co., 246 N.Y. 519, 524, 159 N.E. 418 (1927). It is the court’s responsibility to determine if the language of the contract is ambiguous. If it is not, extrinsic evidence is inadmissible to explain or vary the terms of the agreement. Mallad Constr. Corp., supra, 344 N.Y.S.2d at 930, 298 N.E.2d at 99; Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N.Y. 342, 349, 126 N.E.2d 271 (1955). Upon reviewing the license agreement in its entirety, with the foregoing principles in mind, it is clear that the parties intended the agreement to apply in the event of termination by expiration as well as by any other form of termination. In reaching this conclusion, I am in accord with the New York court which has" }, { "docid": "11516285", "title": "", "text": "encroaching upon the aforesaid standard clearances * * * >» whereas the form type wording of this indemnity clause discloses no intention of shifting the burden of Levitt’s active negligence in this or any other factual situation to William A. Jarvis, Inc. It is also noted that Judge Hand emphasized, at page 99 of 224 F.2d, that the indemnitor only insured injuries resulting from failure to maintain “ ‘standard clearance’ * * * but nothing more.” (Emphasis supplied.) Similarly, in Rice v. Pennsylvania R. Co., 2 Cir., 1953, 202 F.2d 861, 862, liability resulting from negligence of the indemnitee for injuries during removal of scrap bought by the indemnitor was imposed under an indemnity clause which specifically covered “ ‘damages for injuries to person or property, occurring during the removal of the said material.’ ” The decision in Mostyn v. Delaware, L. & W. R. Co., 2 Cir., 1947, 160 F.2d 15, certiorari denied 1947, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355, would appear to support the ruling of the trial judge in this case. . In the case of Mostyn v. Delaware L. & W. R. Co., supra, the court said, 160 F.2d at pages 18-19: “ * * * for over ten years and in a series of decisions that court (New York Court of Appeals) has now laid down what appears to us to be an unswerving canon that if the indemnitee means to throw the loss upon the indemnitor for a fault in which he himself individually shares, he must express that purpose beyond any peradventure of a doubt.” . Rentways, Inc., v. O’Neill Milk & Cream Co., 1955, 308 N.Y. 342, 126 N.E.2d 271, 273, and cases there cited. . For the same reason, Levitt could acquire no right of indemnity at law against Crane, even though Crane should be found responsible for active and primary negligence at its new trial. Under these circumstances, paragraph 3 of Levitt’s Motions filed May 26, 1956, must be. denied. Consideration has. been given to the marked inflation during the past ten years which requires upward revision" }, { "docid": "4904116", "title": "", "text": "nor any other parties, were notified or in any way involved, including those intervenors who had filed administrative complaints with HEW in 1976. Although the agreement did not call for the termination of funds, it did mandate sweeping conditions for fund continuation. As noted above, not later than September, 1980, each individual school in the New York City school system must reflect, within a range of five percent, the racial-ethnic composition of the system’s teacher corps as a whole for each educational level and category, subject only to educationally based program exceptions. To achieve this result, the City will have to reassign its teachers to schools on the basis of their race. There can be little doubt that the HEW-School Board agreement is drastic governmental action that affects the lives of many New York City residents. It is equally clear that the Agreement does not fit neatly into any of the Title VI categories: it neither calls for a fund cut-off, nor is it “voluntary.” The regulations enacted pursuant to Title VI do not define what constitutes “voluntary” compliance other than to state that noncompliance is to be resolved “by informal means whenever possible.” 45 C.F.R. § 80.7(d); 45 C.F.R. § 80.8(a). Nor does the case law address the question. Courts have, however, defined “voluntary” with great specificity in other legal contexts. “[T]o be voluntary, a plea must be free of threats or other coercion that would impermissibly distort choice.” Note, Rule 11 and Collateral Attack on Guilty Pleas, 86 Yale L.J. 1395, 1397-98 (1977). Consent granted under the threat of severe reprisals if agreement is withheld is involuntary. Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970). Cf. 13 Willi ston on Contracts § 1602, at p. 657, § 1603, at p. 663 (3d ed. 1970); Restatement of the Law Second, Contracts, Tentative Draft No. 12, § 319 at p. 43 (March 1, 1977). By any definition, the facts of this ease strongly suggest that the HEW-Board of Education Agreement of September 7, 1977 was not “voluntary.” We do not suggest that" }, { "docid": "4904118", "title": "", "text": "any “agreement” entered into under such circumstances would be “void” because “coerced.”) Rather, we more narrowly determine that when such circumstances exist, Title VI requires -substantial public participation in the decision-making process^) The chronology detailed above makes it clear that the Board of Education was under enormous pressure to accept the September 7, 1977 Memorandum of Understanding. Commissioner Goldberg’s July 1, 1977 letter informed the Board that it would be denied eligibility for required ESAA funds. Show cause hearings were held later in the summer and the decision was not made absolutely final until mid-September when Commissioner- Goldberg informed the Central Board and Local Board 11 that it would not reconsider the denial of the funds. But as of July, 1977, the City knew that ESAA funding would be cut-off by HEW. HEW’s action on the four million of ESAA funding directly imperiled the more than 250 million of federal dollars needed ¡io, keep the City’s school system afloat. \\ The imminent threat of massive fund cut-offs left the City little choice but to agree to the terms of the September 7, 1977 Memorandqm^VWe take judicial notice of the severe fiscal pressures facing the City at this time^These pressures made it impossible for the City to afford fund withholding while it litigated the merits of HEW’s charges. For all practical purposes, the City was at the mercy of the federal authorities. These circumstances distinguish this case from Citizens Legal Defense Alliance, Inc. et al.. v. HEW, 76-C-1614, 76-C-2472 (C.D. Cal. June 24, 1977). That case involved a similar agreement between HEW and the Los Angeles Board of Education. Acknowledging that it had “jurisdiction to decide the Title VI claim,” {id. at 18), the court found no violation of the procedural requirements of Title VI. Id. at 20-21. It specifically ruled that “the Plan was voluntarily enacted by the District.” Id. at 20. We offer no hard and fast rule as to when the' boundary between “voluntary” and “non-voluntary” is crossed. In the absence of administrative regulations, this judgment requires an inquiry into the totality of circumstances by the reviewing court" }, { "docid": "18457359", "title": "", "text": "12 N.Y.2d 301, 239 N.Y.S.2d 337, 189 N.E.2d 693 (1963), is readily distinguishable. In Willard the clause relied upon by defendant to insulate it from liability made no mention of the word “negligence” at all. A clause not even using the word “negligence” cannot be equated with the language used here. Despite the clear language of Supplement 16, PP&L advances a number of further arguments that the limitation of liability clause does not preclude liability for cost of replacement power or breach of implied warranty. PP&L’s first additional argument springs from two venerable canons of contractual interpretation. We quarrel with neither canon and state them as follows: a) Any ambiguity in the terms of an agreement should be construed against the party which drafted the language. Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N.Y. 342, 126 N.E.2d 271 (1955); and b) Where a party seeks to avoid liability for damages otherwise attributable to him, the contractual language implementing such purpose must be clear and precise. Willard Van Dyke Productions, Inc. v. Eastman Kodak Co., 12 N.Y.2d 301, 239 N.Y.S.2d 337, 189 N.E.2d 693 (1963). From this starting point, PP&L attacks the “limitation of liability” clause and, more particularly, the last sentence thereof wherein GE has sought to exclude all possible claims for cost of replacement power. As noted earlier, that sentence provides: In no event, whether as a result of breach of contract, alleged negligence, or otherwise, shall the Seller be liable for damages for loss of profits or revenue resulting therefrom, or for damages for loss of use of power system, cost of capital, cost of purchased or replacement power, or claims of customers of Purchaser for severe interruptions resulting therefrom, or similar items of damage resulting therefrom. PP&L correctly observes that the term “purchaser” as used in the above provision is defined in Article 1 of the Supplementary Terms and Conditions and refers solely to Ebasco. Article 1 also provides that the term “owner” shall be used in the agreement if reference to PP&L is intended. Accordingly, PP&L contends, because the “limitation of liability” clause refers" }, { "docid": "20021192", "title": "", "text": "pending motion for summary judgment.” Litton made these contentions : 1. The agreement between the parties is only an undertaking of indemnity and no liability arises on Litton’s part until after M-T pays a judgment, and then only in the amount paid on account of the judgment. 2. Its liability on the G.E. claim is in the contract limited to $150,000. 3. It did not assume any liability to M-T with respect to product liability claims resulting from accidents occurring after the September 21, 1962 closing. The district court rejected each of these contentions and entered a judgment that Litton is liable to M-T: A. To defend and pay any judgment in the G.E. suit without limit, except to the extent that Liberty Mutual satisfies the same. B. To indemnify M-T against any judgment in the personal injury actions, and to undertake the defense of these actions at Litton's expense. C. To pay M-T all attorneys’ fees and disbursements reasonably paid and incurred by M-T in defending these actions. The M-T to Litton contract provides that it shall be construed and interpreted according to New York law. It is undisputed that the contract, although the subject of negotiations, is in the general form originally prepared by counsel for Litton. Litton’s three contentions must, therefore, be determined under New York law, Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953); Tele-Controls, Inc. v. Ford Industries, Inc., 388 F.2d 48 (7 Cir. 1967); Barzda v. Quality Courts Motel, Inc., 386 F.2d 417 (5 Cir. 1967); Lebeck v. William A. Jarvis, Inc., 145 F.Supp. 706 (E.D.Pa.1956), modified, 250 F.2d 285 (3 Cir. 1957), and in the light of the fact that as the draftsman the agreement will be construed strictly against it. Mutual Life Ins. Co. v. Hurni Co., 263 U.S. 167, 44 S.Ct. 90, 68 L.Ed. 235 (1923); Rentways, Inc. v. O’Neill Milk and Ice Cream Co., 308 N.Y. 342, 126 N.E.2d 271 (1955); Broadway Realty Co. v. Lawyers’ Title Ins. & Trust Co., 226 N.Y. 335, 123 N.E. 754 (1919); Janos v. Peck, 21 A.D.2d 529, 251" }, { "docid": "4904115", "title": "", "text": "however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report. In the instant case, there was no fund cut-off. Allegations of noncompliance resulted in an agreement between HEW and the City school board, reached after informal negotiations between the parties. Only the United Federation of Teachers was consulted during these negotiations. None of the other plaintiffs or defendant-intervenors in this suit, nor any other parties, were notified or in any way involved, including those intervenors who had filed administrative complaints with HEW in 1976. Although the agreement did not call for the termination of funds, it did mandate sweeping conditions for fund continuation. As noted above, not later than September, 1980, each individual school in the New York City school system must reflect, within a range of five percent, the racial-ethnic composition of the system’s teacher corps as a whole for each educational level and category, subject only to educationally based program exceptions. To achieve this result, the City will have to reassign its teachers to schools on the basis of their race. There can be little doubt that the HEW-School Board agreement is drastic governmental action that affects the lives of many New York City residents. It is equally clear that the Agreement does not fit neatly into any of the Title VI categories: it neither calls for a fund cut-off, nor is it “voluntary.” The regulations enacted pursuant to Title VI do not define" } ]

[ { "docid": "22203787", "title": "", "text": "A. R. Co., 5 Cir., 49 F.2d 571. A motion'for a directed verdict, or for a. judgment notwithstanding the verdict under Rule of Civil Procedure 50, 28 U.S.C.A., raises a question of law only: Whether there is any evidence which, if believed, -would authorize- a verdict against movant. The trial judge in considering those motions does not exercise discretion, b.ut'makes, a ruling of law, and if he errs the appellate court may- reverse. A motion for new trial is addressed to the trial judge’s discretion. He may grant a new trial if he thinks he has committed error; and he may grant one (and he alone can) because he thinks the verdict is wrong, though supported by some evidence. The exercise of his discretion is not ordinarily renewable on appeal, though a failure to. exercise discretion, or an abuse of it, may be corrected, The motion for a new trial is entirely independent of the other two motions and is governed by different principles, and has a different result. It never supersedes the jury, bat as its name states, it results in another jury trial, perhaps with different evidence produced. But the motion for directed verdict or for judgment not withstanding the verdiot if granted, ends 'the case. Rule of Civil Procedure 50, while altering the procedure in federal courts, did not alter the nature and'effect of these motions, and each is entitled to be decided according to the principles applicable to it without confusing them. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. 2. While it is not our function to weigh the evidence, we do agree with the trial judge’s first expressed opinion that the weight of the evidence is, “overwhelmingly against the plaintiff”. But we do not agree that the grant of a judgment notwithstanding the verdict was therefore justified. There was evidence of the appellant, not very explicit or positive, which if believed might authorize a jury to conclude he was hurt in the manner -he claims. Because the trial judge does not believe it, because of appellant’s own" } ]

[ { "docid": "17524862", "title": "", "text": "the same elements as are found in a common law negligence action. McGivern v. Northern Pacific Ry. Co., 132 F.2d 213, 217 (8th Cir. 1942). Included in the plaintiff’s prima facie case then is the element of foreseeability. To recover, the plaintiff must prove that the railroad, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury. Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 117, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963); Inman v. Baitimore & Ohio R.R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959). The defendant’s duty is measured by what a reasonably prudent person should or could have reasonably anticipated as occurring under like circumstances. Galiick v. Baltimore & Ohio R.R. Co., supra, 372 U.S. at 118, 83 S.Ct. 659. With this principle in mind, we proceed to examine the plaintiff’s specific allegations of negligence. In considering these contentions, we must be mindful of the posture of the case as it is now before us. The actual question presented is whether the district court properly denied the defendant’s motion for a judgment notwithstanding the verdict, pursuant to Rule 50(b), Fed.R.Civ.P. This motion cannot be granted, of course, unless as a matter of law the opposing party failed to make a case and a verdict in the movant’s favor should have been directed. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940); Schneider v. Chrysler Motors Corp., 401 F.2d 549, 554 (8th Cir. 1968). We must now view the evidence in the light most favorable to sustaining the jury’s findings and must give the prevailing party the benefit of every reasonable inference which may be drawn from the evidence. Nodak Oil Co. v. Mobil Oil Corp., 533 F.2d 401, 407 (8th Cir. 1976); Linn v. Garcia, 531 F.2d 855, 858 (8th Cir. 1976); Figge Auto Co. v. Taylor, 325 F.2d 899, 901 (8th Cir. 1964). Judgment notwithstanding the verdict must be granted if the evidence, so viewed, was such that reasonable men could not differ as" }, { "docid": "6363929", "title": "", "text": "Co. v. Duncan, 311 U.S. 243, 61 S.Ct 189, 85 L.Ed. 147 (1940), this methodology is not appropriate in connection with a motion for judgment n.o.v. In this regard, we agree with the holding of our colleagues of the Eighth Circuit in Midcontinent Broadcast Co. v. North Central Air, Inc., 471 F.2d 357, 358 (8th Cir.1973), declaring: Although the trial court found insufficient evidence to sustain the verdict, it did so only after excluding plaintiff’s expert testimony which had been presented to the jury. This was error. In ruling on the sufficiency of evidence the trial court must take the record as presented to the jury and cannot enter judgment on a record altered by the elimination of incompetent evidence. See, Wright & Graham, Federal Practice and Procedure: Evidence § 5041, at 229-30: “The judge cannot grant a directed verdict or judgment notwithstanding the verdict by ignoring evidence he has admitted on the ground that the admission was error.” See also Hernon v. Revere Copper & Brass, Inc., 363 F.Supp. 96 (E.D.Mo.1973); Townsend v. United States Rubber Co., 74 N.M. 206, 392 P.2d 404 (1964). It was incumbent upon the trial court to consider all of the evidence before the jury, as it was in fact presented to the jury, and to apply the standard we articulated in Boeing Company v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc): On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the" }, { "docid": "4173912", "title": "", "text": "directed only where there is no substantial evidence to support recovery by the party against whom it is directed or where the evidence is all against him or so overwhelmingly so as to leave no room to doubt what the fact is. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720. Verdict may be set aside and new trial granted, when the verdict is contrary to the clear weight of the evidence, or whenever in the exercise of a sound discretion the trial judge thinks this action necessary to prevent a miscarriage of justice.” We have carefully examined the testimony in the record; and when it is viewed in the light most favorable to plaintiff, as it must be on motion for directed verdict or judgment n. o. v., we cannot say that it is not sufficient to support a verdict. The affidavits filed after verdict may constitute grounds for setting aside the verdict and granting a new trial, but cannot be considered on the question of the sufficiency of the evidence before the jury to sustain the verdict. The judgment entered by the court below must accordingly be reversed, but this does not mean that we should direct entry of judgment upon the verdict, as plaintiff argues. Defendant’s alternative motion to set aside the verdict and grant a new trial has not yet been passed on by the trial court, and upon remand this should be done with full power in the trial judge to set aside the verdict and grant a new trial, if in his discretion he determines that the ends of justice so require. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. The judgment for defendant will accordingly be reversed and the case will be remanded for further proceedings not inconsistent herewith. Reversed and remanded." }, { "docid": "11298730", "title": "", "text": "of the reissue statute. Plaintiff in this case therefore was not barred from proceeding to trial in the lower court. We now turn to the responsibilities and duties of this Court under the circumstances here existing. B — The Law The District Court granted an alternative new trial. In the leading case of Montgomery Ward & Co. v. Duncan, 311 U.S. 243, at page 254, 61 S.Ct. 189, at page 196, 85 L.Ed. 147, the Supreme Court said : “Should the trial judge enter judgment n. o. v. and, in the alternative, grant a new trial on any of the grounds assigned therefor, his disposition of the motion for a new trial would not ordinarily be reviewable, and only his action in entering judgment would be ground of appeal. If the judgment were reversed, the case, on remand, would be governed by the trial judge’s award of a new trial.” In Snead v. New York Central, 4 Cir., 216 F.2d 169, 172, the court said: “ ‘Where there is substantial evidence in support of plaintiff’s case, the judge may not direct a verdict against him, even though he may not believe his evidence or may think that the weight of the evidence is on the other side; for, under the constitutional guaranty of trial by jury, it is for the jury to weigh the evidence and pass upon its credibility. lie may, however, set aside a verdict supported by substantial evidence where in his opinion it is contrary to the clear weight of the evidence, or is based upon evidence which is false; for, even though the evidence be sufficient to preclude the direction of a verdict, it is still his duty to exercise his power over the proceedings before him to prevent a miscarriage of justice. See Felton v. Spiro, 6 Cir., 78 F. 576. Verdict can be directed only where there is no substantial evidence to support recovery by the party against whom it is directed or where the evidence is all against him or so overwhelmingly so as to leave no room to doubt what the fact" }, { "docid": "23404600", "title": "", "text": "court’s decision on the defendants’ motions for JNOV (and the dh rected verdict as to defendant Washington); we must determine de novo “whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in a light most favorable to the party against whom the motion is directed.” Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir.1985). See also Webb v. City of Chester, 813 F.2d 824, 827-28 (7th Cir.1987). In applying this standard, neither the district judge nor the appellate court may “resolve conflicts in testimony or weigh and evaluate the evidence, functions that are reserved to the factfinder.... If the evidence, taken as a whole, provides a sufficient probative basis upon which a jury could reasonably reach a verdict, without speculation over legally unfounded claims, the motion should be denied.” Anderson v. Gutschenritter, 836 F.2d 346, 348 (7th Cir.1988). In the words of the Supreme Court: “In every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (emphasis in original). A different standard applies to our review of the trial court’s rulings on the defendants’ motions for a new trial (which the court granted in the event of reversal on the JNOY order). “The test to be applied in determining whether a motion for a new trial should be granted is whether ‘the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving.’ ” General Foam Fabricators v. Tenneco Chemicals, Inc., 695 F.2d 281, 288 (7th Cir.1982) (quoting Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L.Ed. 147 (1940)). Moreover, “[b]ecause the authority" }, { "docid": "15383403", "title": "", "text": "motion for a new trial based on the ground of the inadequacy of the verdict. Several hearings took place before the District Judge, who held the matter under advisement. For reasons which are unexplained, the District Judge did not enter judgment in accordance with the mandate until August 1, 1959; he still had not passed on the question of a new trial. Subsequently, plaintiff renewed her motion for a new trial, and on November 30,1959, the District Judge signed an order setting aside the judgment and granting plaintiff a new trial. The defendant brings this appeal, contending that the District Judge lacked the power to grant a new trial, after our mandate, rightly or wrongly, instructed him to reinstate the jury verdict and enter judgment thereon. Initially, it should be observed that the District Judge ought to have ruled on the new trial motions when he granted the defendants’ motion for judgment n. o. v. In the leading case of Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147, the Supreme Court held that if alternative motions are presented under Rule 50(b) for judgment n. o. v. and for a new trial, the District Judge should rule on the motion for judgment, and “[wjhatever his ruling thereon he should also rule on the motion for a new trial, indicating the grounds of his decision.” 311 U.S. at page 253, 61 S.Ct. at page 195. Where, as here, in addition to alternative motions by the losing party there is also a motion for new trial by his adversary, the District Judge should pass on all the motions, stating the grounds for each decision. Such a practice not only conforms to the requirements laid down in Montgomery Ward & Co. v. Duncan, but is conducive to “the just, speedy, and inexpensive determination of every action.” F.R.Civ.P., Rule 1. We note further that when our opinion was filed, with its direction to reinstate the jury verdict, plaintiff’s proper course was to petition this court for a rehearing or modification of the mandate on the ground that" }, { "docid": "15039223", "title": "", "text": "Civ.Proc. 28 U.S.C.A. as interpreted in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849, and Johnson v. New York, N. H. & H. R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77, and the fact that neither party below made a motion for a new trial, this court on appeal is limited to the function of either affirming the judgment for derfendant entered “non obstante veredicto,” or reversing it and thereby reinstating the verdict of the jury in favor of plaintiff. It is not within this court’s power to-order a new trial under the procedure- followed at the end of the trial of this case, even if the charge to the jury were held to be inadequate or to contain some substantial error, or if error had been committed during the trial in the admission or exclusion of evidence. So, applying the rule that every inference, favorable to the plaintiff, that can be legitimately drawn from the evidence, must be so drawn, I have concluded that the ■judgment setting aside the jury’s verdict should be reversed, the verdict of the jury awarding plaintiff damages in the amount of $10,416.65 should be reinstated, and plaintiff should have judgment against the defendant for the -amount of the jury’s verdict, with interest, plus costs in the court below and in this court. . Plaintiff claims that he was hired by Mr. Rosenberg, a director and member of the executive committee of defendant’s board of directors, on June 1, 1955, for a fixed term of one year, at a salary of $50,000 per year, payable $25,000 in cash and $25,000 in stock of defendant corporation. Defendant corporation denied the making of any such contract on June 1, 1955; and further contended that Rosenberg was never authorized to make any such contract on its behalf; and that plaintiff was hired on June 2, 1955 at the rate of $25,000 a year under a contract terminable at will. . Evidently" }, { "docid": "17524863", "title": "", "text": "presented is whether the district court properly denied the defendant’s motion for a judgment notwithstanding the verdict, pursuant to Rule 50(b), Fed.R.Civ.P. This motion cannot be granted, of course, unless as a matter of law the opposing party failed to make a case and a verdict in the movant’s favor should have been directed. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940); Schneider v. Chrysler Motors Corp., 401 F.2d 549, 554 (8th Cir. 1968). We must now view the evidence in the light most favorable to sustaining the jury’s findings and must give the prevailing party the benefit of every reasonable inference which may be drawn from the evidence. Nodak Oil Co. v. Mobil Oil Corp., 533 F.2d 401, 407 (8th Cir. 1976); Linn v. Garcia, 531 F.2d 855, 858 (8th Cir. 1976); Figge Auto Co. v. Taylor, 325 F.2d 899, 901 (8th Cir. 1964). Judgment notwithstanding the verdict must be granted if the evidence, so viewed, was such that reasonable men could not differ as to the conclusion that the plaintiff’s proof had failed to meet its burden as to an essential element of the cause of action. Linn v. Garcia, supra, 531 F.2d at 858; Simpson v. Skelly Oil Co., 371 F.2d 563, 567 (8th Cir. 1967); Hanson .v. Ford Motor Co., 278 F.2d 586, 596 (8th Cir. 1960); Morris Bros. Lumber Co. v. Eakin, 262 F.2d 259, 263 (3d Cir. 1959). The plaintiff alleges that the defendant was negligent: (1) in failing to provide the plaintiff a safe and easy means of access to its bunkhouse; (2) in failing to assure that the contractors working in the area cleaned up and maintained the area in a safe and suitable condition; (3) in failing to see that lights, barricades or other warnings were placed to protect the area under construction; and (4) in failing to provide the plaintiff a safe place to work. The defendant contends that the plaintiff failed to make a prima facie case in each of these allegations of negligence, in that the plaintiff did not" }, { "docid": "16408730", "title": "", "text": "is improper. As this court said in Boeing Company v. Shipman, 5 Cir. 1969, 411 F.2d 365, “If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied * * *.” We therefore find that the motion for judgment notwithstanding the verdict was improvidently granted. The question concerning the new trial is more difficult. Under Rule 50(c) of the Federal Rules of Civil Procedure the trial court is instructed to rule on a motion for new trial when such a motion is made along with a motion for judgment notwithstanding the verdict. The theory is that if the judgment is later reversed on appeal, the case on remand will be governed by the trial judge’s award of a new trial. Montgomery Ward and Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. However, this court is not compelled to allow the conditional grant to stand if it would be an abuse of discretion to allow a new trial. Berner v. British Commonwealth Pacific Airlines, Ltd., 2 Cir. 1965, 346 F.2d 532, cert. denied, 382 U.S. 983, 86 S.Ct. 559, 15 L.Ed.2d 472; Lind v. Schenley Industries, Inc., 3 Cir. 1960, 278 F.2d 79, cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed. 2d 60; Federal Rules of Civil Procedure, Rule 50(c). Our review of this issue is greatly hampered by the fact that the court below, in violation of the rule, did not specify the grounds for granting the motion for a new trial. We are convinced from an examination of the record, however, that the new trial was granted because the trial judge changed his mind concerning the instructions given the jury. It should be remembered that the court’s" }, { "docid": "22869946", "title": "", "text": "conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” (Emphasis supplied.) In Eckenrode v. Pennsylvania R. Co., 1948, 335 U.S. 329, 330, 69 S.Ct. 91, 92, 93 L.Ed. 41, the scope of appellate review in cases similar to that here involved was succinctly spelled out as follows : “There is a single question presented to us: Was there any evidence in the record upon which the jury could-have found negligence on the part of the respondent which contributed, in whole or in part, to Eckenrode’s death?” Under the holding in that case if upon consideration of the record there is “evidence” or any “inference which may reasonably be drawn from the evidence”, which “when viewed in a light most favorable to the petitioner (plaintiff)” can sustain a recovery, the jury’s verdict cannot be disturbed. In the instant case, as already indicated, there was in the record, “evidence” or “inferences” reasonably drawn from the evidence, from which the jury could have found negligence on the defendant’s part which contributed to the decedent’s death. An illuminating guide is afforded us in the latest expression of the Supreme Court on the subject of the jury function in Employers’ Liability Act cases, Schulz v. Pennsylvania R. Co., 1956, 350 U.S. 523, 525, 526, 76 S.Ct. 608, 610. It was there said: “In considering the scope of the issues entrusted to juries in cases like this, it must be borne in mind that negligence cannot be established by direct, precise evidence such as can be used to show that a piece of ground is or is not an acre. Surveyors can measure an acre. But measuring negligence is different. * * * Issues of negligence, therefore, call for the exercise of common sense and sound judgment under" }, { "docid": "5376700", "title": "", "text": "At the same time it overruled defendants’ motion for a new trial. These appeals followed. Plaintiff appeals from the action of the District Court in entering judgment for defendants notwithstanding the verdict. Defendants have also appealed from the court’s ruling denying their motion for a new trial, and from the order of the District Court directing that the guardian ad litem's fee be assessed against the estate of Margaret MacKay, deceased. We first direct our attention to the action of the trial court in sustaining defendants’ motion for judgment notwithstanding the verdict. The law is well settled that in passing upon such a motion the trial court must be governed by the same rules which govern it in passing upon a motion for a directéd verdict. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 665. The motions are in effect the same; they present -only a question of law as to whether or not, when all of the evidence with reasonable inferences therefrom is considered in its aspect most favorable to the -plaintiffs, there is a total failure or lack of evidence to prove any necessary element of the plaintiff’s case. As was said in Knudson v. Knudson, 382 Ill. 492, on page 494, 46 N.E.2d 1011, 1012: “The rule is that where there is any evidence tending to prove the cause of action, it is error to direct a verdict, and this is true in a will contest as well as in an action at law. * * * The question presented by a motion for a directed verdict, or for a judgment non obstante veredicto, is whether there is any evidence fairly tending to prove the cause of action or the fact affirmed. The court, on such motion, does not weigh the evidence nor consider its preponderance.” We must therefore in order to pass properly on the trial court’s action in entering judgment notwithstanding the verdict, review the evidence in the case at bar. This we shall do as briefly as" }, { "docid": "2069381", "title": "", "text": "that the greater weight of the evidence is contrary to the verdict. * * * ” Reeord, pp. 9, 28. . Dobie, The Federal Rules of Civil Procedure, 25 Va.L.Rev. 261, 289 (1939). Professor Moore, in my opinion, agrees with Judge Dobie: “When a motion for judgment under Rule 50(b) is properly and timely made, the trial court may, if a verdict has been returned, allow the judgment to stand or reopen the judgment and in its discretion either grant a new trial or direct the entry of judgment in accordance with the requested directed verdict.” 5 Moore’s Federal Practice 2332 (2d ed. 1952). See also Simkins, Federal Practice 486 (3d ed. 1938). . The Advisory Committee, in 1955, proposed an amendment to Rule 50(b) in which a motion for now trial would be deemed to be asking for a judgment n. o. v. as an alternative. Logically, this would infer the converse to be true. See Moore’s Federal Rules and Official Forms, as Amended with Comments on the Amendments and Proposed Amendments 239 (1956). . There are few federal cases dealing with the precise issue. For an indication the court can grant a new trial upon a motion for judgment n. o. v. see Gillis v. Reicks, D.C.D.C.1947, 7 F.R.D. 205; contra: Taylor v. Reading Co., D.C.E.D.Pa.1949, 83 F.Supp. 804; See Moomaw v. Reading Co., D.C.E.D.Pa., 66 F.Supp. 636, affirmed mem., 3 Cir., 1946, 156 F.2d 678; Yates v. Dann, D.C.D.Del.1951, 11 F.R.D. 386; see also Kanatser v. Chrysler Corp., 10 Cir., 1952, 199 F.2d 610, certiorari denied, 1953, 344 U.S. 921, 78 S.Ct. 388, 97 L.Ed. 710: Bailey v. Slentz, 10 Cir., 1951, 180 F.2d 408. . Johnson v. New York, New Haven & Hartford R. Co., 1052, 344 U.S. 48, 73 S. Ct. 125, 97 L.Ed. 77; Globe Liquor Co. v. San Roman, 1948, 33-2 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177; Cone v. West Virginia Pulp & Paper Co., 1947, 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849; Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147." }, { "docid": "5997057", "title": "", "text": "respect. This case was tried before a jury which rendered a verdict finding the claims valid and infringed and fixing plaintiff’s damages at $2500. The District Court granted a motion for judgment notwithstanding the verdict and dismissed the complaint for want of equity. Plaintiff insists that such action was not properly within the province of the court and that, if there was substantial evidence to support the verdict, it can not be disturbed. We do not so understand the law. The District Judge should grant a directed verdict when the evidence is such that there are no controverted issues of fact upon which reasonable men could differ. Denver & R. G. R. Co. v. Wagner, 8 Cir., 167 F. 75; Simerson v. St. L. & S. F. R. Co., 8 Cir., 173 F. 612; Inter-Southern Life Ins. Co. v. McElroy, 8 Cir., 38 F.2d 557. This, we think, was the situation here. The court granted a motion for a new trial, set aside the verdict and entered judgment notwithstanding the verdict. Rule 50 of Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, lodges power in the District Court in such situations to grant a motion for new trial or to enter judgment notwithstanding the verdict as if the requested verdict had been directed. Concerning this practice the Supreme Court in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 196, 85 L.Ed. 147, said: “Should the trial judge enter judgment n.o.v. and, in the alternative, grant a new trial on any of the grounds assigned therefor, his disposition of the motion for a new trial would not ordinarily be reviewable, and only his action in entering judgment would be ground of appeal. If the judgment were reversed, the case, on remand, would be governed by the trial judge’s award of a new trial.” In view of our conclusion that the judgment should be affirmed, no further question arises upon this record as to the propriety of the order granting the motion for new trial. We assume from the memorandum of the District Judge that the" }, { "docid": "15039222", "title": "", "text": "methods, and therefore sought an excuse to terminate plaintiff’s employment. If plaintiff’s hiring was one at will the executive committee did not need to ask for his resignation. But they did ask for it and when it was not forthcoming they terminated plaintiff’s employment as of December 31, 1955. From this a jury could infer that a contract for a period of one year had been made with plaintiff and that defendant corporation wanted a way out. Plaintiff’s resignation was not required or necessary, if a hiring at will was involved. Hanlon v. Macfadden Publications, Inc., 1951, 302 N.Y. 502, 505, 99 N.E.2d 546, 24 A.L.R.2d 733. Trial courts and intermediate appellate courts in the Federal judicial system have been reminded from time to time that the verdict of a jury may not lightly be set aside. And that is the basis of my dissent herein. If it were possible to reverse and remand this case for a new trial I would be inclined to follow that course. But in view of Rule 50(b), Fed.Rules Civ.Proc. 28 U.S.C.A. as interpreted in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849, and Johnson v. New York, N. H. & H. R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77, and the fact that neither party below made a motion for a new trial, this court on appeal is limited to the function of either affirming the judgment for derfendant entered “non obstante veredicto,” or reversing it and thereby reinstating the verdict of the jury in favor of plaintiff. It is not within this court’s power to-order a new trial under the procedure- followed at the end of the trial of this case, even if the charge to the jury were held to be inadequate or to contain some substantial error, or if error had been committed during the trial in the admission or exclusion of evidence. So, applying the rule that every inference, favorable to the" }, { "docid": "11298732", "title": "", "text": "is. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720. Verdict may be set aside and new trial granted, when the verdict is contrary to the clear weight of the evidence, or whenever in the exercise of a sound discretion the trial judge thinks this action necessary to prevent a miscarriage of justice.’ [Inside quote from Garrison v. U. S., 4 Cir., 62 F.2d 41, 42] “ * * * if the judge is of opinion that the verdict of the jury was against the weight of the evidence or based on evidence that was false, he should set it aside and grant a new trial, even though direction of a verdict or judgment n. o. v. was not warranted.” Disposition of this appeal can take any of three alternative courses. We can either (1) affirm the trial court’s action in granting judgment for the defendants n. o. v., (2) remand the case for a new trial, in accordance with the alternative order of the District Court, or (3) hold that the alternative order granting the new trial was an abuse of discretion and reinstate the jury verdicts. In reviewing the validity of the judgment n. o. v. granted by the District Judge, the same Montgomery Ward case, cited above, has this to say: “The motion for judgment cannot be granted unless, as a matter of law, the opponent of the Movant (here appellant) failed to make a case, and, therefore a verdict in Movant’s favor should have been directed.” Montgomery Ward & Co. v. Duncan, supra, 311 U.S. at page 251, 61 S.Ct. at page 194. Another Circuit Court has said: “The rule is well established that a motion for a judgment notwithstanding the verdict presents only a question of law as to whether, when all the evidence is considered together with all reasonable inferences most favorable to plaintiff, there is a total failure or lack of evidence to prove any necessary element of plaintiff’s case.” O’Day v. Chicago River & Indiana Ry. Co., 7 Cir., 216 F.2d 79, 82. See also: Snead v. New York" }, { "docid": "13494087", "title": "", "text": "for the breach-of-contract claim as would be available for the reformation claim when deciding what the terms of the intended contract are. Consequently, the breach-of-contract and reformation claims involve a common issue. The district court erred in finding that there were no issues common to the parties’ legal and equitable claims. We conclude that Smith Flooring had a Seventh Amendment right to a trial by jury on the common issue of what the terms of the intended contract were. The district court also erred in treating the jury’s verdict as merely advisory under Federal Rule of Civil Procedure 39 insofar as this issue is concerned. However, the district court’s error does not necessitate reversal of its granting post-verdict judgment as a matter of law to Pennsylvania Lumbermens. First, “it is settled that Rule 50(b) [judgment as a matter of law] does not violate the Seventh Amendment’s guarantee of a jury trial.” Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 321, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967) (citing Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147 (1940)). Second, as we shall now discuss, the evidence in this case was not sufficient to support the jury’s verdict in Smith Flooring’s favor. B. Sufficiency of the Evidence “In reviewing the sufficiency of the evidence to support the jury’s verdict, we interpret the record in a light most favorable to the prevailing party, affirming unless no reasonable juror could have reached the same conclusion.” Structural Polymer Grp., Ltd. v. Zoltek Corp., 543 F.3d 987, 991 (8th Cir.2008) (citing Anderson Mktg., Inc. v. Maple Chase Co., 241 F.3d 1063, 1065 (8th Cir.2001)). The district court found that “clear, cogent and convincing evidence demonstrates that the policy does not accurately set forth the agreement between Smith Flooring and Pennsylvania Lumber-mens that the Pine Warehouse be excluded from coverage.” The court noted that “ ‘[e]lear, cogent and convincing evidence is that which instantly tilts the scales in the affirmative when weighed against evidence in opposition; evidence which clearly convinces the fact finder of the truth of the" }, { "docid": "22399001", "title": "", "text": "Co., 5 Cir., 175 F.2d 498, 499-500. In Brady v. Southern Ry. Co., 320 U.S. 476, 479-480, 64 S.Ct. 232, 234, 88 L.Ed. 239, the Court said: “When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to tbe verdict, the court should determine the proceeding by non-suit, directed verdict or otherwise in accordance with the applicable practice without submission to the jury, or by judgment notwithstanding the verdict.” (Emphasis added.) As Moore puts it, a motion for new trial may invoke “the exercise of the trial court’s discretion, such as that the verdict is inadequate or excessive, or that the verdict is against the weight of the evidence. In reference to this latter matter this function of the motion for a new trial must be sharply distinguished from the motion for a directed verdict.” A “verdict may be set aside as contrary to the preponderance of the evidence, although a directed verdict is not justified.” On a motion for new trial, the judge acts “as the thirteenth juror”, i. e., he evaluates the credibility of the orally-testifying witnesses and therefore their demeanor. But on a motion for a directed verdict he does not. The rule that a trial judge may legitimately consider demeanor in ordering new trials means that his new-trial orders are seldom reviewable; on the other hand, the rule that he may not legitimately consider demeanor in considering directed verdict motions means that his orders on such motions are readily reviewable. See Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 254, 61 S.Ct. 189, 85 L.Ed. 147. Frequently this sort of case arises: The defendant urges his motion for a directed verdict on the ground that, although there is oral testimony, the record contains no testimony (or other evidence) from which any rational inference can be drawn for the existence of a fact indispensable to plaintiff’s case. If the trial judge, then, directs a defendant’s verdict, the upper court, on. appeal, in testing the propriety of his direction, adopts the postulate that the trial judge" }, { "docid": "23604994", "title": "", "text": "part of Chrysler Corporation or Pittsburgh Plate Glass Company; (2) in finding that Schneider failed to show that the vent window was unsafe for the purpose intended and that there had been no breach of implied warranty; and (3) in finding that Schneider’s contributory negligence could bar recovery on his theory of negligence. Schneider also argues (4) that privity is no longer a requirement in a breach of implied warranty action whether North Dakota or Nebraska law is applied, and (5) that contributory negligence is not a defense to an action for breach of warranty. In affirming the decision of the District Court, we believe the first two issues framed by Schneider to be dis-positive; hence, we do not reach the latter three contentions advanced by him. The broad question presented on this appeal is whether the District Court properly granted defendants’ motions for judgment notwithstanding the verdict, pursuant to Rule 50(b), Fed.R. Civ.P. This motion cannot be granted unless as a matter of law the opposing party failed to make a case and a verdict in the movant’s favor should have been directed. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940); 2B Barron and Holtzoff, Federal Practice and Procedure § 1079, p. 414 (1961). The standard in considering a motion for judgment notwithstanding the verdict is the same as the standard for directing a verdict. Compton v. United States, 377 F.2d 408, 411 (8 Cir. 1967); 2B Barron and Holtzoff, Federal Practice and Procedure § 1079, p. 412 (1961). Under either motion the question of sufficiency of the evidence to support a jury verdict is raised. The problem arises, in a diversity case in a federal court, whether the state or federal test of sufficiency of the evidence to support a jury verdict is to be applied. The Supreme Court has twice declined to decide whether state or federal standards are controlling. Mercer v. Theriot, 377 U.S. 152, 156, 84 S.Ct. 1157, 12 L.Ed.2d 206 (1964); Dick v. New York Life Insurance Co., 359 U.S. 437, 444-445, 79 S.Ct. 921," }, { "docid": "8792836", "title": "", "text": "invention. But they do not conclusively indicate invention as defendant urges. Such evidence, when doubt exists, may resolve that doubt in favor of him who submits it, but where as here there is a clear-cut case of lack of invention such evidence cannot successfully controvert it. Finally, defendant argues that, if the trial judge’s ruling is sustained, it deprives every patentee of his right to a trial by jury on the question of invention as guaranteed by the 7th Amendment of the Constitution. On this the defendant cites Slocum v. New York Life Ins. Co., 1913, 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879 Ann.Cas.1914D, 1029, but fails to cite the qualifying decision in Baltimore & Carolina Line, Inc. v. Redman, 1935, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636 and Rulé 50(b) of the Federal Rules of Civil Procedure. Rule 50(b) was designed to reserve the legal question involved where a motion for a directed verdict made at the close of all the evidence is denied. Such reservation was held sufficient to empower the judge to enter judgment notwithstanding the verdict even though he denied the motion for directed verdict prior to submission of the case to the jury. Rule 50 (b) in terms makes the denial subject to later determination if the proper steps are taken. See discussion in 3 Moore’s Federal Practice § 50.02 and 8 Cyclopedia of Federal Procedure [2d.ed.] § 3497. See also Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. Defendant’s contention in this respect is wholly without merit. Since our conclusion is that judgment of the District Court is to be affirmed it becomes unnecessary and we do not pass upon the question of the defendant’s right to a jury trial on the entire matter raised both in the complaint and the counterclaim, interesting though that question undoubtedly is. Affirmed. Defendant's expert witness testified, however, that the cut edges make for easy withdrawal of the curler from the hair. The H. C. Fraser et al. patent No. 1,847,826 granted March 1, 1982 which" }, { "docid": "2069371", "title": "", "text": "no lan- guage which absolutely requires a trial court to enter judgment notwithstanding the verdict even though that court is persuaded that it erred in failing to direct a verdict for the losing party.” That a trial court has discretion to grant a new trial even where the record warrants a judgment n. o.°v. does not infer the discretion exists solely when that situation prevails. Although the Supreme Court has not passed on the exact question, the rationale governing its interpretation of Rule 50(b) supports the conclusion here reached. The Court has construed Rule 50(b) on four occasions and there is one common ground upon which these decisions rest — the necessity of the trial judge, in the first instance, to exercise an “informed judicial discretion” as to the proper remedy. “And he can exercise this discretion with a fresh personal knowledge of the issues involved, the kind of evidence given, and the impression made by witnesses. * * * Determination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart.” (Emphasis added.) Cone v. West Virginia Pulp & Paper Co., supra, 330 U.S. at page 216, 67 S.Ct. at page 755. This is exactly what occurred in the instant case. In Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147, the Court set forth the procedure to be followed by the trial judge where alternative 50(b) motions are made, and stressed the lower court’s duty to decide both motions. In Cone v. West Virginia Pulp & Paper Co., supra, Globe Liquor Co. v. San Roman, supra, and Johnson v. New York, New Haven & Hartford R. Co., supra, the Court held an appellate court could not enter judgment on reversal unless a timely and precise motion for judgment n. o. v. had been offered below. The reasoning indicates the making of this motion provides the trial" } ]

[ { "docid": "6906929", "title": "", "text": "the first clause, which prohibits the divulging of wire or radio transmissions by communications personnel. 1968 Omnibus Crime Control Act, § 803, 82 Stat. at 223. In conjunction with this amendment, the Act included sweeping laws governing the interception of wire and oral communications, which are codified at chapter 119 of title 18 of the United States Code, 18 U.S.C. § 2510 et seq. 1968 Omnibus Crime Control Act, § 802, 82 Stat. at 212-13. These new laws endeavored to regulate comprehensively all types of possible interception of wire and oral communications, but, unlike the pre-amendment § 605, chapter 119 contained provisions expanding law enforcement’s use of wiretaps, pen registers, and the like. See 18 U.S.C. §§ 2516-18. The legislative history of the 1968 Omnibus Crime Control Act explains that with respect to wire communications, the amended § 605 was “designed to regulate the conduct of communications personnel,” while “[t]he regulation of the interception of wire or oral communications in the future is to be governed by proposed new chapter 119 of title 18, United States Code.” S. Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2196-97. In fact, we have stated that “the clear intent of Congress would seem to be that the interception of wire communications would be governed solely by the new Chapter 119.” Korman v. United States, 486 F.2d 926, 931 (7th Cir.1973). Unfortunately, the regulatory scheme created by the 1968 Omnibus Crime Control Act left a gap. The Act amended what is now § 605(a) to remove reference to wire communications in clauses two, three, and four, and enacted chapter 119 to govern the interception of oral and wire communications. How ever, the definition of “wire communication” for purposes of chapter 119, 18 U.S.C. § 2510(1), is narrower than the definition of “wire communication” in title 47, 47 U.S.C. § 153(a). Section 2510(1) limits its definition of wire communication to aural communications transmitted through a wire or cable facility operated by a common carrier. 18 U.S.C. § 2510(1). And the Supreme Court noted in United States v. Southwestern Cable Co., 392 U.S." } ]

[ { "docid": "22587619", "title": "", "text": "cited in support of its ruling Porter, Cox Cable, and National Subscription Television v. S & H TV, 644 F.2d 820, 826-27 (9th Cir.1981), a case dealing with the interception of over-the-air subscription television. 583 F.Supp. at 161. Finally, Annasonic stated three rationales for concluding that § 605 applies to the interception of cable-borne, as well as over-the-air, pay television. First, “[t]he system of coaxial cable used to facilitate final delivery of the signal to subscriber homes, does not change the nature of the stolen transmission itself.” 583 F.Supp. at 164. Second, the court pointed to the first sentence of § 605(a) as prohibiting such interceptions. Id. Third, the court disparaged the likelihood that the 1968 Act would have excepted cable-borne television from the proscription of § 605(a) without providing any substitute proscription under the 1968 Act. In Noel, the district court rejected these cases and their interpretation of § 605(a). It regarded the first sentence of that provision as “intended to regulate the conduct of communications personnel — i.e., those legitimately involved in transmitting or receiving radio or wire communications — rather than to address the problem of unauthorized interception or reception of communications.” Noel, 859 F.Supp. at 75 (citing Sen.Rep. No. 1097, 98th Cong., 2d Sess. 108, reprinted in 1968 U.S.C.C.A.N. 2112, 2197; Edwards v. State Farm Ins. Co., 833 F.2d 535, 540 (5th Cir.1987)). It deemed the 1968 amendments to' the second and third sentences of § 605(a) to have removed wire communications from their purview, and viewed the contrary judicial interpretations as having “ ‘stretched the language of § 605 to apply to the advanced technologies of the 1980s.’ ” Id. (quoting United States v. Norris, 833 F.Supp. 1392, 1400 (N.D.Ind.1993), aff'd on other grounds, 34 F.3d 530 (7th Cir.1994)). This is certainly a plausible reading of the impact of the 1968 Act upon § 605. We note in this regard the following statement from the legislative history of the 1968 Act: “This section is not intended merely to be a reenactment of section 605. The new provision is intended as a substitute. The regulation of" }, { "docid": "22587616", "title": "", "text": "prohibits any “person not being autho rized by the sender” from “intercept[ing] any radio communication and divulg[ing]'... [its] contents ... to any person.” The third sentence prohibits any “person not being entitled thereto [from] receiving] or assisting] in receiving any interstate or foreign communication by radio and us[ing] such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.” See supra note 2. Section 605 was initially enacted as § 605 of the Communications Act of 1934, Pub.L. No. 416, 48 Stat. 1064, 1103. As originally enacted, the first and third sentences of present § 605(a) made reference to “communication by wire or radio,” while the second sentence referred to “any communication.” In connection with passage of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, tit. III (Wiretapping and Electronic Surveillance), codified at 18 U.S.C. § 2510 et seq. (the “1968 Act”), however, Congress deleted the reference to communication “by wire” in the third sentence of present § 605(a), and changed the phrase “any communication” to “any radio communication” in the second sentence. In addition, the designations (1) through (6) were added to the existing provisions of the first sentence, as well as the introductory clause: “Except as authorized by chapter 119, Title 18.” Minor editorial changes to § 605 were also made at that time. See Pub.L. No. 90-351, § 803, 82 Stat. 223. Although the 1968 amendments might have been read to remove the receipt or interception of cable-borne television signals from the purview of the second and third sentences of § 605 (now § 605(a)), the courts did not construe those provisions in this manner when the issue was presented to them. Rather, the case law was to the contrary. The first such case, Porter County Cable Co. v. Moyer, 624 F.Supp. 1 (N.D.Ind.1983), cited the second and third sentences of § 605(a) as applicable to the sale of electronic descramblers for use in intercepting premium cable television services. See 624 F.Supp. at 3. The case was decided on an" }, { "docid": "22967195", "title": "", "text": "June 6, 1994) (unpublished table decision), is unavailing. In Cablevision, a distributor with exclusive rights to broadcast a boxing match to commercial establishments sued a sports bar under § 605 that had improperly obtained the boxing match from a residential pay-per-view service. Cablevision cited Smith for the proposition that when “there [is] no interception, the mere fact that the bar divulged or published [a similar boxing match] cannot make it liable under Section 605(a).” See id. at *4 (citing Smith, 475 F.2d at 741) (original alterations and internal quotation marks omitted). For the reasons previously discussed, however, this proposition is not a correct statement of the law. Smith’s holding is limited to an interpretation of the second sentence of § 605(a), not the entire provision. As a result, Cablevision’s reliance on the broad dicta from Smith is misplaced. Because Cablevision is an unpublished decision, we are not bound by its holding. See McCloud v. Testa, 97 F.3d 1536, 1559 n. 36 (6th Cir.1996). We are bound, however, to properly apply the first sentence of § 605(a). An authorized intermediary of a communication (such as Time Warner) violates the first sentence of § 605(a) when it divulges that communication through an electronic channel to one “other than the addressee” intended by the sender (such as Main Events). Time Warner responds by arguing that at all times it was transmitting the event through fully authorized channels. But this is incorrect, because Time Warner was not authorized to transmit the event to commercial establishments. When viewed in this light, we conclude that the district court did not err in holding that Time Warner violated the first sentence of § 605(a). The district court found that Time Warner had improperly divulged the communication of the event to the Melody Lane Lounge, an “addressee” that was not authorized by Main Events to receive it from Time Warner. This conclusion finds support from the case of That’s Entertainment, Inc. v. J.P.T., Inc., 843 F.Supp. 995 (D.Md.1993). That court, faced with a similar fact pattern to the one in Cablevision, held that [e]ven assuming, as these defendants" }, { "docid": "14083487", "title": "", "text": "153(33), Congress clearly defined wire and radio communications as concepts involving distinct types of transmissions. Thirty-four years after passage of the Communications Act, Congress restructured the regulatory framework governing the interception of radio and wire communications when it passed the Omnibus Crime Control and Safe Streets Act of 1968. See Pub.L. No. 90-351, 82 Stat. 197 (the “Crime Control Act” or the “1968 Act”). Seeking to combat a contemporary surge in crime, particularly in organized activity, Congress greatly expanded the authority of law enforcement officials to monitor the communications of suspected offenders. To ensure autonomy and coherence in the novel framework of the 1968 Act, Congress amended § 605 from the Communications Act to remove references to wire communications from all but the first clause of § 605(a), which banned the divulgenee of wire and radio transmissions by communications personnel. See 1968 Act, 82 Stat. at 223. The legislative history of the 1968 Act states that, while the act removed.prohibitions on interference with, and monitoring of, wire communication from the purview of section 605 of the Communications Act, Congress introduced comprehensive provisions regulating the interception of wire and oral communications, now codified at 18 U.S.C. § 2510 et seq. See S.Rep. No. 1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2196-97. Congress also explained why it removed the reference to wire communication in § 605: This section amends section 605 of the Communications Act of 1934 (48 Stat. 1103, 47 U.S.C. sec. 605 (1958)). This section is not intended merely to be a reenactment of section 605. The new provision is intended as a substitute. The regulation of the interception of wire or oral communications in the future is to be governed by proposed new chapter 119 of title 18, United States Code. Id. (emphasis added) Thus, through the Crime Control Act, Congress removed from § 605 of the Communications Act the principal share of its authority over wire communications, leaving § 605 primarily with radio communications. In short, although § 605, as originally drafted in 1934, would have reached the cable decoder box piracy perpetrated by Cable City, the 1968" }, { "docid": "3775149", "title": "", "text": "75 F.3d at 131 n. 4; S.Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2197. . Moreover, the relevant sentences in § 605 previously referred to the receipt of \"communication by wire or radio,” Communications Act of 1934, Pub.L. No. 73-416, § 605, 48 Stat. 1064, 1103-04, but Congress later removed the references to wire communications. See Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 223. When making this change, Congress explained that \"regulation of the interception of wire or oral communications in the future is to be governed by proposed new chapter 119 of title 18, United States Code” (which is now codified at 18 U.S.C. §§ 2510 et seq. and is inapplicable here because it does not encompass television broadcasts). 1968 U.S.C.C.A.N. at 2196. In other words, the legislative history suggests that Congress intentionally removed the word “wire” from § 605. . Although we need not examine the legislative history surrounding the FCA, we note that it simply confirms what is already evident from the text and statutory framework of the FCA. In particular, a prior version of § 605 referred to the receipt of wire communications, but Congress removed the word \"wire” when reenacting § 605 and enacted 18 U.S.C. §§ 2510 etseq. to regulate the interception of wire communications. See supra note 11.’ This left a regulatory gap because the definition of wire communications in the newly enacted provisions did not encompass cable television broadcasts. See 18 U.S.C. § 2510(1); Norris, 88 F.3d at 465-66. Section 553 was then passed to fill this void by prohibiting the unauthorized receipt or interception of cable services, which Congress observed was becoming a pervasive problem. See generally Charter Commc’ns, 460 F.3d at 176 (\"Congress, in enacting § 553, was attempting to create a comprehensive regulatory regime covering the theft of all communications transmitted over a wire or cable— something that had largely been unregulated since the enactment of the Crime Control Act in 1968 and the removal of most references to 'communications by wire’ from § 605.”); TKR Cable Co., 267" }, { "docid": "22967199", "title": "", "text": "benefit or for the benefit of another not entitled thereto.” 47 U.S.C. § 605(a) (emphasis added). We read the clause “no person not being entitled thereto” as referring to persons who were never authorized to receive the communication in question. Unlike the first sentence of § 605(a), which looks at the relationship between the original sender and the ultimate receiver in determining whether the communication is authorized, the third sentence only applies to persons who were never authorized to be in possession of the communication in the first place. Time Warner does not fit within this definition, because it was contractually authorized to receive the communication of the event at its head end in Akron and to further relay that communication to its residential customers in the area. We therefore cannot agree with the district court that Time Warner violated the proM-bition enunciated in the third sentence of § 605(a). Nonetheless, Time Warner is unable to escape liability under the first sentence of § 605(a) for divulging the communication that it was authorized to distribute on a limited basis only, when one of the recipients of that transmission was an unauthorized addressee of Main Events, the sender. Although Time Warner protests that this outcome results in a federal mandate of infallibility on the part of cable operators, we believe that Congress enacted the Commumcations Act and the subsequent amendments thereto to protect the integrity of electronic communications from negligent as well as willful divulgences by intermediaries. Section 605(e), for example, distinguishes between willful and nonwillful divulgences in the setting of statutory damages. Both NSS and Time Warner were such intermediaries in the transmission of the event in question, and were only authorized to partake in the transmission insofar as their respective transmission rights authorized them to do so. Because the Melody Lane Lounge was not authorized by Main Events to receive the transmission of the event from Time Warner, Time Warner has violated the prohibitions of the first sentence of § 605(a). E. The district court’s findings of statutory damages, attorney fees, and costs were not clearly erroneous Finally, Time" }, { "docid": "22587618", "title": "", "text": "unopposed motion for summary judgment. See id. at 2. It relied upon two prior cases that dealt with the interception of over-the-air, rather than cable-borne, subscription television services. See id. at 3. Cox Cable Cleveland Area, Inc. v. King, 582 F.Supp. 376 (N.D.Ohio 1983), next made such a ruling, citing cases that dealt with the unauthorized interception of over-the-air subscription television, id. at 380, and stating that “[s]ection 605 prohibits the divulgement or publication of wire communications which are not intended for the general public,” id. (emphasis added). As previously noted, as a result of the amendments made to § 605(a) by the 1968 Act, only the first sentence of § 605(a) makes any reference to “wire” communications. Ciminelli v. Cablevision, 583 F.Supp. 158 (E.D.N.Y.1984), incorporated, appended, and relied upon an immediately prior ruling by the same court in Cablevision v. Annasonic Electronic Supply, No. CV-83-5159 (E.D.N.Y. Feb. 10, 1984), to reject the argument that “[s]ection 605 does not apply to the interception of wire transmissions or communications.” See 583 F.Supp. at 160-61. Ciminelli also cited in support of its ruling Porter, Cox Cable, and National Subscription Television v. S & H TV, 644 F.2d 820, 826-27 (9th Cir.1981), a case dealing with the interception of over-the-air subscription television. 583 F.Supp. at 161. Finally, Annasonic stated three rationales for concluding that § 605 applies to the interception of cable-borne, as well as over-the-air, pay television. First, “[t]he system of coaxial cable used to facilitate final delivery of the signal to subscriber homes, does not change the nature of the stolen transmission itself.” 583 F.Supp. at 164. Second, the court pointed to the first sentence of § 605(a) as prohibiting such interceptions. Id. Third, the court disparaged the likelihood that the 1968 Act would have excepted cable-borne television from the proscription of § 605(a) without providing any substitute proscription under the 1968 Act. In Noel, the district court rejected these cases and their interpretation of § 605(a). It regarded the first sentence of that provision as “intended to regulate the conduct of communications personnel — i.e., those legitimately involved in transmitting" }, { "docid": "3775147", "title": "", "text": "broadcasts of sporting events in addition to the premium program services that are mentioned in the TWC agreement. See, e.g., Joe Hand Promotions, Inc. v. Phoenix Promotions LLC, No. 10-15102, 2012 WL 3025107 at *1, 2012 U.S. Dist. LEXIS 102534, at *3 (E.D.Mich. July 24, 2012) (citing the language of the contract, which stated, \"Comcast does not have the right to distribute pay-per-view video programming (including programming such as sporting events) and certain premium video services to commercial establishments. Therefore, Customer agrees that it shall not exhibit or assist in the exhibition of any such programming unless explicitly authorized to do so, in advance and in writing, by Comcast and the applicable program or event distributor.”). .In this regard, the facts of this case are almost identical to those in Schmalz, where the court found that J&J could not maintain a § 553 claim against a TWC commercial customer who received a pay-per-view broadcast of a boxing match that TWC was not authorized to distribute to commercial customers. See 745 F.Supp.2d at 851 (\"Defendants were listed as a commercial customer, ordered the program as a commercial customer, were billed and paid for such service, as commercial customers. At no time did Defendants misrepresent their status as a commercial customer.”). . It is undisputed that GAPC received the broadcast by wire from TWC’s cable system. . We specifically do not address how § 605 might apply to factual circumstances not present here, such as the receipt or interception of satellite or radio signals intended for receipt by a cable system, . The first sentence of § 605 refers to the divulgence or publication of “communication by wire or radio.” However, J&J does not argue that this sentence applies. This sentence is also not traditionally applied in the piracy context because it does not refer to the unauthorized interception or receipt of communications, and it is understood as \"regulat[ing] the conduct of communications personnel.” Edwards v. State Farm Ins. Co., 833 F.2d 535, 540 (5th Cir.1987); see also TKR Cable Co., 267 F.3d at 201; Norris, 88 F.3d at 465; Int'l Cablevision," }, { "docid": "19985844", "title": "", "text": "failed to raise it before the district court. See United States v. Si, 343 F.3d 1116, 1128 (9th Cir.2003). . Although these statutes provide criminal penalties, this is a civil suit. Both the Communications Act of 1934, 47 U.S.C. § 605 (2000), and the Wiretap Act, 18 U.S.C. §§ 2511-2521 (2003), authorize civil remedies for parties harmed by statutory violations. 18 U.S.C. § 2529(a); 47 U.S.C. § 605(3)(A). . In § 605(a), Congress retained “the types of unauthorized publication or use of electronic communications that ha[d] been prohibited since the Communications Act first became law.” Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 911 (6th Cir.2001). Section 605(b) provides for limited exceptions to § 605(a). Section 605(c) prohibits the encryption of “satellite delivered programs included in the National Program Service of the Public Broadcasting Service and intended for public viewing by retransmission by television broadcast stations.” Section 605(d) contains definitions for the purposes of § 605, and finally, § 605(e) authorizes penalties and remedies for statutory violations. . Conduct specifically prohibited by § 593d(a) includes: making or maintaining \"an unauthorized connection ... to any cable, wire, or other component of a multichannel video or information services provider's system,” Cal.Penal Code § 593d(a)(l); purchasing, possessing, or attaching \"any unauthorized device or devices” to such a system, id. § 593d(a)(2); modifying or altering \"any device installed with the authorization of a multichannel video or information services provider,” id. § 593d(a)(3); and modifying or altering \"an access device that authorizes services” or obtaining a modified access device and using it \"to obtain services from a multichannel video or information services provider,” id. § 593d(a)(4). . Section 605(a) provides that no one \"transmitting, or assisting in transmitting” a communication covered by the statute \"shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception.” Similarly, the Piracy Act prohibits the transmission or broadcasting of \"any program or other service not intended to be transmitted or broadcast.” Cal.Penal Code § 593d(c). . Both the California and the federal statutes provide for enhanced fines" }, { "docid": "22967185", "title": "", "text": "the Cable Communications Policy Act of 1984 and the Satellite Home Viewer Act in 1988. Both acts were intended to expand the scope of protection provided by the Communications Act, not limit it. In particular, Time Warner’s argument flies in the face of Congress’s explicit interest in “expanding standing to sue” under the Act. By adding satellite communications under the protection of § 605, along with wire and radio communications, Congress sought to make clear that those with “proprietary rights in the intercepted communication by wire or radio, including wholesale or retail distribu tors of satellite cable programming,” 47 U.S.C. § 605(d)(6), have standing to sue. But this explicit reference to a subset of persons aggrieved was not intended to exclude others who sustain injuries from a violation of any of the prohibitions originally listed in § 605(a). In particular, the prohibition in the first sentence of § 605(a) does not involve the interception of a communication at all. It prohibits intermediaries who are authorized, to receive a communication by wire or radio from divulging the contents of the transmission to any person other than the addressee intended by the sender. Our circuit has previously recognized Congress’s intent to expand rather than contract the reach of the Communications Act when it amended § 605: In view of [promoting the growth of satellite programming and facilitating individual reception of unencrypted satellite signals], Congress amended the Communications Act to authorize the receipt of unscrambled satellite programming for private viewing[, w]hile leaving intact the prohibitions against unauthorized use of radio or wire communications contained in I7 U.S.C. § 605(a). Loschiavo v. City of Dearborn, 33 F.3d 548, 551 (6th Cir.1994) (emphasis added). Time Warner, however, argues that § 605 “is violated only when a person both intercepts and divulges a communication,” citing Smith v. Cincinnati Post & Times-Star, 475 F.2d 740 (6th Cir.1973), and Bufalino v. Michigan Bell Telephone Co., 404 F.2d 1023 (6th Cir.1968). The district court acknowledged these older precedents in a footnote, but distinguished them on the basis that they were both decided before the 1984 and 1988 amendments to" }, { "docid": "22587615", "title": "", "text": "§ 153(b). Some preliminary explication is required, however, in order to isolate this central issue for resolution. Section 605(e)(3)(A) provides a civil action to “[a]ny person aggrieved by any violation of [§ 605(a) ] or [§ 605(e)(4) ].” Section 605(e)(4) imposes criminal liability upon “[a]ny person who ... distributes any electronic, mechanical, or other device or equipment, knowing or having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption of satellite cable- programming, or is intended for any other activity prohibited by [§ 605(a) ].” “Satellite cable programming” is defined by § 605(d)(1) to mean “video programming which is transmitted via satellite and which is primarily intended for the direct receipt by cable operators for their retransmission to cable subscribers.” See supra note 2. The first sentence of § 605(a) prohibits persons “receiving, assisting in receiving, transmitting, or assisting in transmitting ... any interstate or foreign communication by wire or radio” from divulging or publishing the contents of that communication except in specified, authorized ways. The second sentence prohibits any “person not being autho rized by the sender” from “intercept[ing] any radio communication and divulg[ing]'... [its] contents ... to any person.” The third sentence prohibits any “person not being entitled thereto [from] receiving] or assisting] in receiving any interstate or foreign communication by radio and us[ing] such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.” See supra note 2. Section 605 was initially enacted as § 605 of the Communications Act of 1934, Pub.L. No. 416, 48 Stat. 1064, 1103. As originally enacted, the first and third sentences of present § 605(a) made reference to “communication by wire or radio,” while the second sentence referred to “any communication.” In connection with passage of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, tit. III (Wiretapping and Electronic Surveillance), codified at 18 U.S.C. § 2510 et seq. (the “1968 Act”), however, Congress deleted the reference to communication “by wire” in the third sentence of present §" }, { "docid": "3775148", "title": "", "text": "listed as a commercial customer, ordered the program as a commercial customer, were billed and paid for such service, as commercial customers. At no time did Defendants misrepresent their status as a commercial customer.”). . It is undisputed that GAPC received the broadcast by wire from TWC’s cable system. . We specifically do not address how § 605 might apply to factual circumstances not present here, such as the receipt or interception of satellite or radio signals intended for receipt by a cable system, . The first sentence of § 605 refers to the divulgence or publication of “communication by wire or radio.” However, J&J does not argue that this sentence applies. This sentence is also not traditionally applied in the piracy context because it does not refer to the unauthorized interception or receipt of communications, and it is understood as \"regulat[ing] the conduct of communications personnel.” Edwards v. State Farm Ins. Co., 833 F.2d 535, 540 (5th Cir.1987); see also TKR Cable Co., 267 F.3d at 201; Norris, 88 F.3d at 465; Int'l Cablevision, 75 F.3d at 131 n. 4; S.Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2197. . Moreover, the relevant sentences in § 605 previously referred to the receipt of \"communication by wire or radio,” Communications Act of 1934, Pub.L. No. 73-416, § 605, 48 Stat. 1064, 1103-04, but Congress later removed the references to wire communications. See Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 223. When making this change, Congress explained that \"regulation of the interception of wire or oral communications in the future is to be governed by proposed new chapter 119 of title 18, United States Code” (which is now codified at 18 U.S.C. §§ 2510 et seq. and is inapplicable here because it does not encompass television broadcasts). 1968 U.S.C.C.A.N. at 2196. In other words, the legislative history suggests that Congress intentionally removed the word “wire” from § 605. . Although we need not examine the legislative history surrounding the FCA, we note that it simply confirms what is already evident from the" }, { "docid": "22967180", "title": "", "text": "Warner because the definition of a “person aggrieved” in § 605(d)(6) is nonexclusive Congress enacted the Cable Communications Policy Act of 1984 to address “a problem which is increasingly plaguing the cable industry — the theft of cable service.” H.R.Rep. No. 98-934, at 83 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4720. This statute amended and supplemented the Communications Act. See id. The 1984 legislation added subsections (b)-(e) to § 605. These new provisions were intended to address “the growing practice of individuals taking down satellite delivered programming for private, home viewing by means of privately owned backyard earth stations.” See 1984 U.S.C.C.A.N. at 4745. The original prohibitions contained in § 605, however, were retained without amendment in what is now codified at § 605(a). Section 605(a), therefore, lists the types of unauthorized publication or use of electronic communications that have been prohibited since the Communications Act first became law. It sets forth separate prohibitions in each sentence. The first sentence states: [N]o person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception ... to any person other than the addressee, his agent, or attorney.... 47 U.S.C. § 605(a). The second sentence of § 605(a) prohibits piracy as is it traditionally understood: No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. Id. Finally, the third sentence provides: No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. Id. Congress has criminalized the unauthorized interception of communications prohibited by § 605(a). See 47 U.S.C. § 605(e)(1). Subsection (e) also provides for private civil enforcement of § 605 as now amended. See 47 U.S.C. § 605(e)(3)(A) (“Any person aggrieved" }, { "docid": "22587620", "title": "", "text": "or receiving radio or wire communications — rather than to address the problem of unauthorized interception or reception of communications.” Noel, 859 F.Supp. at 75 (citing Sen.Rep. No. 1097, 98th Cong., 2d Sess. 108, reprinted in 1968 U.S.C.C.A.N. 2112, 2197; Edwards v. State Farm Ins. Co., 833 F.2d 535, 540 (5th Cir.1987)). It deemed the 1968 amendments to' the second and third sentences of § 605(a) to have removed wire communications from their purview, and viewed the contrary judicial interpretations as having “ ‘stretched the language of § 605 to apply to the advanced technologies of the 1980s.’ ” Id. (quoting United States v. Norris, 833 F.Supp. 1392, 1400 (N.D.Ind.1993), aff'd on other grounds, 34 F.3d 530 (7th Cir.1994)). This is certainly a plausible reading of the impact of the 1968 Act upon § 605. We note in this regard the following statement from the legislative history of the 1968 Act: “This section is not intended merely to be a reenactment of section 605. The new provision is intended as a substitute. The regulation of the interception of wire or oral communications in the future is to be governed by proposed new chapter 119 of title 18, United States Code.” S.Rep. No. 1097 at 107, reprinted in 1968 U.S.C.C.A.N. 2196. Nonetheless, the pre-1984 decisions provide another plausible interpretation of at least the third sentence of § 605(a). See Sykes, 997 F.2d at 1007 (deeming third sentence of § 605(a) the “pertinent” provision). The continued transmission of radio signals via cable after their receipt at the headend of a cable television system can be regarded as the “receipt, forwarding, and delivery of [radio] communications ... incidental to [the transmission]” of the pictures and sounds transmitted by those communications within the meaning of § 153(b). See Annasonic, 583 F.Supp. at 164 (“The system of coaxial cable used to facilitate final delivery of the signal to subscriber homes, does not change the nature of the stolen transmission itself.”). This interpretation may be deemed to have been adopted by Congress when it reenacted § 605(a) without change (except for labelling it as subsection (a)" }, { "docid": "1329951", "title": "", "text": "a computerized mobile telephone switching office. The switching office automatically switches the conversation from one base station and frequency to another as the mobile telephone moves from cell to cell. See Electronic Communications Privacy Act of 1986. S.Rep. No. 99-541, 99th Cong., 2d Sess., (1986), reprinted in 1986 U.S.Code Cong. & Ad.News 3555, 3563. . On October 21, 1986, chapter 119 of Title 18 was substantially revised by the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 1848 (codified as amended at 18 U.S.C.A. §§ 2510-2521 (West Supp.1987)). As amended, the Wiretap Act continues to authorize a civil action for violation of its provisions, but it now applies to \"electronic communications\" as well as wire and oral communications. See 18 U.S.C.A. §§ 2511, 2520 (West Supp.1987). . The last sentence of section 605(a) was amended in 1982 to remove amateur and \"CB\" radio transmissions entirely from the protections of section 605. See Communications Amendments Act of 1982, Pub.L. No. 97-259, 126, 96 Stat. 1087, 1099 (1982); see also Brown & Helland, Section 605 of the Communications Act: Teaching a Salty Old Sea Dog New Tricks, 34 Cath.U.L. Rev. 635, 646-48 (1985). The Communications Act was further amended in 1984 to regulate the interception of satellite cable programming, but these amendments left the language of subsection (a) of section 605 untouched. See Cable Communications Policy Act of 1984, Pub.L. No. 98-549, 98 Stat. 2779 (1984) (codified at 47 U.S.C.A. §§ 521-611 (West Supp.1987)). The 1984 amendments also for the first time expressly imposed civil and criminal penalties for violations of the provisions of section 605. Id. (codified at 47 U.S.C.A. § 605(d)). . Regulation of wire and radio communications was first consolidated into the jurisdiction of the new Federal Communications Commission with the enactment of the Communications Act of 1934. See Pub.L. No. 73-416, 48 Stat. 1064 (1934) (codified at 47 U.S.C. §§ 151-609). From that date until enactment of the Wiretap Act in 1968, section 605 of the Communications Act governed interception of both radio and wire communications by communications personnel, law enforcement officers, and private persons." }, { "docid": "14083486", "title": "", "text": "1934 Act further provided definitions of wire and radio communication that are still in use today and are codified at 47 U.S.C. § 153. Specifically, § 153 defines radio and wire communication as follows: (33) The term radio communication or “communication by radio” means the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.... (52) The term “wire communication” or “communication by wire” means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission. 47 U.S.C. § 153(33), (52) (2001). Accordingly, in both the principal provisions of the Communications Act, now codified at 47 U.S.C. § 605, and the definitional provisions now codified at § 153(52) and § 153(33), Congress clearly defined wire and radio communications as concepts involving distinct types of transmissions. Thirty-four years after passage of the Communications Act, Congress restructured the regulatory framework governing the interception of radio and wire communications when it passed the Omnibus Crime Control and Safe Streets Act of 1968. See Pub.L. No. 90-351, 82 Stat. 197 (the “Crime Control Act” or the “1968 Act”). Seeking to combat a contemporary surge in crime, particularly in organized activity, Congress greatly expanded the authority of law enforcement officials to monitor the communications of suspected offenders. To ensure autonomy and coherence in the novel framework of the 1968 Act, Congress amended § 605 from the Communications Act to remove references to wire communications from all but the first clause of § 605(a), which banned the divulgenee of wire and radio transmissions by communications personnel. See 1968 Act, 82 Stat. at 223. The legislative history of the 1968 Act states that, while the act removed.prohibitions on interference with, and monitoring of, wire communication from the purview of section 605 of" }, { "docid": "14083502", "title": "", "text": "become sufficiently pressing to merit legislation. In sum, we believe that both the historical context of these statutes and the expressed intent of Congress support our reading of § 553 as the exclusive means of addressing the defendants’ conduct. C Finally, TKR maintains that we should follow International Cablevision, Inc. v. Sykes, 75 F.3d 123 (2d Cir.1996), in which the Second Circuit read § 605 broadly to encompass all satellite-originated transmissions. In contrast to the Second Circuit, the Seventh Circuit, in Norris, adhered to an analysis resembling more closely the one we adopt here, concluding that “cable television programming transmitted over a cable network is not a ‘radio communication’ as defined in § 153(b), and thus its unlawful interception must be prosecuted under § 553(a) and not § 605.” Norris, 88 F.3d at 469. In Sykes, the Second Circuit emphasized a section of the committee report accompanying § 605, which stated as follows: Existing section 605 of the Communications Act of 1934 includes a prohibition against the unauthorized reception of communications services. Nothing in [§ 553] is intended to affect the applicability of existing Section 605 to theft of cable service, or any other remedies available under existing law for theft of service. H.R.Rep. No. 98-934, at 83, reprinted in 1984 U.S.C.C.A.N. at 4720. In analyzing this passage in the legislative history, the Sykes court stated, “Although the issue is not entirely free from doubt, the more likely reading of this legislative history is that in view of the uniform prior judicial interpretation of § 605 as applicable to the theft of cable service, the ... passage in the above quotation was intended to make clear that § 605 would continue to be so applicable.” Sykes, 75 F.3d at 132. We disagree with the Sykes panel’s conclusion because we believe it overlooked a key congressional distinction concerning the point of unauthorized reception. The legislative history nowhere suggests that Congress considered § 605 as applying after 1968 to wire retransmissions of radio communications. The same passage of the committee report in fact demonstrates that, when Congress passed the Cable Act, it" }, { "docid": "22587617", "title": "", "text": "605(a), and changed the phrase “any communication” to “any radio communication” in the second sentence. In addition, the designations (1) through (6) were added to the existing provisions of the first sentence, as well as the introductory clause: “Except as authorized by chapter 119, Title 18.” Minor editorial changes to § 605 were also made at that time. See Pub.L. No. 90-351, § 803, 82 Stat. 223. Although the 1968 amendments might have been read to remove the receipt or interception of cable-borne television signals from the purview of the second and third sentences of § 605 (now § 605(a)), the courts did not construe those provisions in this manner when the issue was presented to them. Rather, the case law was to the contrary. The first such case, Porter County Cable Co. v. Moyer, 624 F.Supp. 1 (N.D.Ind.1983), cited the second and third sentences of § 605(a) as applicable to the sale of electronic descramblers for use in intercepting premium cable television services. See 624 F.Supp. at 3. The case was decided on an unopposed motion for summary judgment. See id. at 2. It relied upon two prior cases that dealt with the interception of over-the-air, rather than cable-borne, subscription television services. See id. at 3. Cox Cable Cleveland Area, Inc. v. King, 582 F.Supp. 376 (N.D.Ohio 1983), next made such a ruling, citing cases that dealt with the unauthorized interception of over-the-air subscription television, id. at 380, and stating that “[s]ection 605 prohibits the divulgement or publication of wire communications which are not intended for the general public,” id. (emphasis added). As previously noted, as a result of the amendments made to § 605(a) by the 1968 Act, only the first sentence of § 605(a) makes any reference to “wire” communications. Ciminelli v. Cablevision, 583 F.Supp. 158 (E.D.N.Y.1984), incorporated, appended, and relied upon an immediately prior ruling by the same court in Cablevision v. Annasonic Electronic Supply, No. CV-83-5159 (E.D.N.Y. Feb. 10, 1984), to reject the argument that “[s]ection 605 does not apply to the interception of wire transmissions or communications.” See 583 F.Supp. at 160-61. Ciminelli also" }, { "docid": "912649", "title": "", "text": "forbids any person to intercept and divulge wire or radio communications. In United States v. Sugden, 226 F.2d 281, 285 (9th Cir. 1955), aff’d per curiam, 351 U.S. 916, 76 S.Ct. 709, 100 L.Ed. 1449 (1956), we held “that unless the Congress orders otherwise” the exclusionary rule applies when non-FCC governmental agents or private individuals intercept non-public broadcasts without consent in violation of § 605. The first question before us is whether Congress has ordered otherwise. Although only a few words were added to § 605 by the Crime Control Act, the legislative history of the Act clearly states that the amended section “is not intended merely to be a reenactment of section 605. The new provision is intended as a substitute.” S.Rep.No.1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong, and Admin.News 2196. The legislative history also explicitly shows that Congress intended to exclude law enforcement officers from the purview of the new § 605. The Senate Judiciary Committee stated: The new section is designed to regulate the conduct of communications personnel. It also provides that no person not authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. “Person” does not include a law enforcement officer acting in the normal course of his duties. But see United States v. Sugden (226 F.2d 281 (9th 1955), affirmed per curiam, 76 S.Ct. 709, 351 U.S. 916 [100 L.Ed. 1449] (1956)). Id. at 2197 (emphasis added to text). It is obvious that the legislature wanted law enforcement personnel to be governed exclusively by Chapter 119 of Title 18. Therefore, because the critical communications were intercepted by the lawmen, § 605 offers no impediment. We need not reach the question of the involvement of the housewife. II. Chapter 119 of Title 18. Whether the challenged interception should be suppressed demands close scrutiny of the statutory requirements concerning wire and oral communications added by Title III of the Crime Control Act. See Chapter 119, 18 U.S.C. § 2510 et seq. If the interception in question falls" }, { "docid": "22967196", "title": "", "text": "605(a). An authorized intermediary of a communication (such as Time Warner) violates the first sentence of § 605(a) when it divulges that communication through an electronic channel to one “other than the addressee” intended by the sender (such as Main Events). Time Warner responds by arguing that at all times it was transmitting the event through fully authorized channels. But this is incorrect, because Time Warner was not authorized to transmit the event to commercial establishments. When viewed in this light, we conclude that the district court did not err in holding that Time Warner violated the first sentence of § 605(a). The district court found that Time Warner had improperly divulged the communication of the event to the Melody Lane Lounge, an “addressee” that was not authorized by Main Events to receive it from Time Warner. This conclusion finds support from the case of That’s Entertainment, Inc. v. J.P.T., Inc., 843 F.Supp. 995 (D.Md.1993). That court, faced with a similar fact pattern to the one in Cablevision, held that [e]ven assuming, as these defendants contend, that there was no “interception” here because [the bar] was “authorized” by [the residential distributor] to receive the Event on a pay-per-view basis, defendants still have violated the Act because they clearly were not authorized to then broadcast the Event to the patrons of a commercial establishment such as [the bar].... [T]he first and third sentences of [§ 605(a)] do not ... require an “interception” of a cable transmission and clearly proscribe the unauthorized divulgence or use of communications which have been “received” legally for certain purposes. Id. at 999. A similar’ conclusion was reached in the unreported case of Joe Hands Promotions v. D.M.B. Ventures, Inc., Nos. CIV. A 93-2656, CIV. A. 93-3141, 1995 WL 328399 (E.D.La. May 31, 1995) (unpublished table decision). In Joe Hands Promotions, Cox Cable had the exclusive right to distribute a boxing match to its residential customers via pay-per-view programming, while Joe Hand Promotions had the exclusive right to distribute the event to commercial establishments. Just as NSS has sued Time Warner in the case before us, Joe" } ]

[ { "docid": "17488804", "title": "", "text": "Civilian pay; Civil Service retirement annuity; increased annuity. — Plaintiff, a former civilian Government employee, sues to recover additional. Civil Service retirement annuity pay from the date of his retirement in 1962, on the ground that he should have received credit in the computation of his amiuity for a two year, period between 1936 and 1938 during which time plaintiff was not in Government service as the result' of a removal for cause. Plaintiff urges that his dismissal from the service was illegal and that the period of such illegal separation should have been used in computing his retirement annuity. Defendant moved for summary judgment on the ground that the claim is barred by the six year statute of limitations applicable to suits in this court since the illegal removal resulting in the loss of creditable service occurred in 1936, and also on the ground that under 5 U.S.C. § 2253(a), no credit could be allowed for any period of separation in excess of three days. Upon consideration of defendant’s motion, plaintiff’s objections thereto and the briefs of the parties, the court, on January 3,1964, dismissed the petition on the basis of Palmer v. United States, 129 Ct. Cl. 322 and 5 U.S.C. § 2253(a)." } ]

[ { "docid": "22793201", "title": "", "text": "United States, 198 Ct. Cl. 48, 457 F. 2d 978 (1972). The same unequivocal rule applies to an Air Force enlisted man under 10 U.S.C. § 8914. The plaintiff lias not served the required length of time to become eligible for the retirement benefits he now seeks. He attempts to avoid this obstacle by asking this court to re-examine and invalidate the May 1963 discharge proceedings in the context of this retirement claim, thereby giving him constructive credit for the years of active duty he did not serve between May 1963 and July 1967. Such a re-examination is clearly barred by the statute of limitations with respect to the active duty claim. As a result, the court does not feel that it has the power to hold otherwise in the context of the retirement claim. The stumbling block comes from the fact that once this plaintiff was officially discharged from the Air Force, he lost the right to earn future active duty pay and, since he had not, at that moment, completed 20 years of service, the future right to receive retirement pay and allowances lapsed as well. The plaintiff had 6 years in which to challenge in court the legality of his discharge in order to protect his right to fulfill his enlistment commitment and obtain the needed years of service for retirement. This he did not do and cannot be allowed to do at this time through the vehicle of the retirement claim. The one rests on the other like a house on a foundation; without the foundation, the house will not stand. In reaching this result, the court is not stating a new rule. Hames v. United States, 164 Ct. Cl. 746, cert. denied, 377 U.S. 904 (1964); Palmer v. United States, 129 Ct. Cl. 322, 121 F. Supp. 643 (1954). In Palmer, for instance, the court reached a similar conclusion where the plaintiff was seeking to obtain the difference between the retirement pay he would have received had he not allegedly been wrongfully demoted in 1944 from a hazardous duty position more than 6 years prior" }, { "docid": "22793199", "title": "", "text": "the result of a statute (as in the present case). Sauer v. United States, 173 Ct. Cl. 642, 647, 354 F. 2d 302, 304(1965). While it seems clear that plaintiff Kirby could not have sued to receive his retirement benefits in any suit filed prior to the end of enlistment in July 1967 because he did not have 20 years of service, it likewise is clear that if he had successfully brought suit to recover his lost active duty pay within 6 years of his discharge he would automatically have received constructive credit for the time subsequent to his discharge, which would have rounded out the 20 years required for retirement by 10 U.S.C. § 8914, and no suit for retirement would have been necessary. Diamond v. United States, 192 Ct. Cl. 502, 427 F. 2d 1246 (1970). Gearinger v. United States, 188 Ct. Cl. 512, 412 F. 2d 862 (1969). All events required to fix defendant’s liability for the retired pay would thus have taken place within the limitations period. As the matter stands, however, the “all events” requirement to fix defendant’s liability has never transpired so plaintiff’s cause of action for a money judgment for retirement is nonexistent, having never accrued. It is true that entitlement to active duty back pay and retirement pay arise under different sections of the Code and accrue as the result of different events. Nonetheless, as noted above, there is a clear nexus between the two. Where the right to the first is demonstrated, the other may follow as a matter of course. It is the precise nature of this connection which requires further analysis. In pertinent part, 10 U.S.C. §8914 provides: “* * * a regular enlisted member of the Air Force who has at least 20, but less than 30, years of service computed under section 8925 of this title may, upon his request, be retired.” In the past this court has denied a reserve officer the right to retirement benefits under a similar provision (10 U.S.C. § 1331) for failing to complete the qualifying 20 years of service. Montilla v." }, { "docid": "22793218", "title": "", "text": "see it, Sauer v. United States, 173 Ct. Cl. 642, 354 F. 2d 302 (1965), and Oceanic S.S. v. United States, 165 Ct. Cl. 217 (1964), are consistent with this Pabner-Hames rationale. In Sauer, the F.B.I. retirement pay had all been earned before the plaintiff transferred, and the court did not think that there was any statute or regulation (as there was in Palmer and Homes) implying that Sauer had to bring a suit within six years (or earlier) of his transfer to this court (or of the refusal of our Clerk to credit that prior leave) to test the refusal to credit the leave. In Oceanic the situation was the same; there was no statute or regulation suggesting or calling for an earlier inquiry into the disputed substantive issue; on the contrary, the court thought that the applicable regulations were clear that the claimant did not have to sue until after a “final accounting” 'had been made by the defendant. Although the court’s decision in this case harmonizes with Pálmer-Hames-Sauer-Oceanic, I depart from it, with some hesitation, because, unlike the majority, I do not see the military retirement statutes in the same light as the “hazardous duty” retirement legislation 'in Palmer or the statutory requirement in Homes that creditable service be actually served. I would avoid holding that in the military retirement system Congress has laid down the Procrustean requirement that the 20 years (or more) be actually served in all cases, except where suit is brought within 6 years of the adverse action. Congress did not say explicitly that the service had to be “actual” in all instances, and we have some leeway in inferring an intention to recognize “constructive” service where appropriate. The hypothetical case which mainly troubles me is that of a serviceman who has been told by an official that he has enough years or points or credits for retirement, and, on the basis of that assurance, does not sue to set aside an early adverse action because he thinks that, apart from that adverse action, he still has enough eligibility for retirement; on retirement" }, { "docid": "22793212", "title": "", "text": "from the service. More important, the receipt of credit for the accumulated leave was nothing more than a paperwork transaction. There was no doubt at anytime that plaintiff Sauer had actually accrued the unused annual leave which was the basis for the lump sum claim. The accumulated leave in that case corresponds to the 20 years of service in this case. The court could not have given the plaintiff in Sauer credit for the accumulated leave if he had not actually accumulated it while an employee of the FBI. The situation is the same in the case now before the court. By requiring the plaintiff to challenge his discharge within 6 years of the date it becomes effective, the court is asking the plaintiff to show actual or constructive credit for 20 years of service before he brings the suit and not to seek to raise himself by his own bootstraps by asking first for constructive credit for the lost years of service and then for retirement pay based on that credit, all in the same lawsuit. As the facts now stand, the plaintiff has not served the 20 years required by the statute for retirement. Until he has served or received constructive credit for such service he has no right to the retirement benefits he now seeks. The oral argument was made that this places a burden on a discharged serviceman who doesn’t care to be restored to his position in the service because he is lucky enough to go out and find an equal or higher paying job as in Palmer. In such a case he must nevertheless contest the discharge when, in fact, he stands to gain no monetary recovery since he has no damages for lost pay. Under these circumstances, it is said, he should be allowed to sue for retirement pay at the time he would have retired. The short answer to this idea supporting the proposition that a man should, be permitted to sue at his convenience, for retirement on the basis of time not served, is that if the serviceman is discharged without" }, { "docid": "22793203", "title": "", "text": "to filing the suit in 1953. Palmer alleged, as does Kirby, that procedural irregularities made his demotion (which he considered a wrongful discharge) invalid. The demotion to a nonhazardous duty position prevented the plaintiff from serving 20 years in the hazardous duty job, which was a prerequisite to receiving the higher hazardous duty retirement benefits. No back pay was claimed. Palmer retired in 1950. The court dismissed the petition on alternate grounds. First, the petition was filed too late: “Any claim 'based on that alleged removal [the demotion] is now barred by the six-year statute of limitations, 28 TJ.S.C. § 2501 (1952 ed.) * * *.”129 Ct. 'Cl. at 326,121 F. Supp. at 645. The second basis for dismissing the petition rested on the plaintiff’s failure to state a cause of action because the pertinent statute in that case required the plaintiff to spend 20 years of actual service in a hazardous duty position. The Palmer court treated the two bases for its decision as being completely independent of one another and there they plainly are, nothing in the opinion implying otherwise. However, we need not treat the facts of this case in precisely the same manner. As discussed before, the issue of when the statute of limitations begins to run, and when a plaintiff has stated a sufficient cause of action, may be interrelated, as here. In addition, this plaintiff does not need to show 20 years of actual service in order to qualify for the retirement benefits he now seeks. In Gearinger v. United States, supra, the court held, in a case where the statute of limitations was not an issue, that a serviceman can receive constructive active duty credit as part of a claim for active duty pay, which fulfills the requirements of the retirement statute. Plaintiff Kirby, however, has neither served the necessary 20 years, nor has he received constructive credit therefor. In effect, the plaintiff’s right to sue for retirement benefits has never accrued and will not accrue until he actually serves the requisite number of years or receives constructive credit for the same by" }, { "docid": "22793215", "title": "", "text": "Cl. 537, 579 (1940). In conclusion, the court finds that plaintiff Kirby has, with respect to the active duty pay claim, filed his suit beyond the period allowed by the statute of limitations. With respect to the claim for retirement pay, the plaintiff has not shown the necessary length of service requisite to ¡bringing such a claim and he cannot obtain constructive credit for the missing years of service by challenging an alleged illegal discharge in the context of this claim for retirement benefits, for he waited too long. The .plaintiff’s motion for summary judgment is denied and the defendant’s cross-motion is granted. The petition is dismissed. Plaintiff served through four continuous re-enllstments except for a break from June 30,1950 to October 9,1950. Davis, Judge, dissenting in part: This limitations problem has occasioned much deliberation, and the result is Judge Bennett’s admirable opinion for the court, carefully keying the present decision to our prior reported rulings, and explaining its rationale. I think that the opinion is consistent with the court’s earlier holdings in the limitations field (except as indicated in note 1, supra). My understanding of the underpinning of Palmer v. United States, 129 Ct. Cl. 322, 121 F. Supp. 643 (1954), and Hames v. United States, 164 Ct. Cl. 746, cert. denied, 377 U.S. 904 (1964), is that a plaintiff suing for retirement pay (military or civilian) cannot go into the lawfulness of an adverse administrative action (removal or demotion) which accrued more than 6 years before commencement of suit if there is some statute indicating that Congress wanted the retired individual to have actually served the number of years required for retirement, or showing that Congress desired a particular administrative body to decide, on a discretionary basis, whether the plaintiff had earned or merited the particular type of retirement. In Palmer the court interpreted the “hazardous duty” retirement statute as requiring at least 20 years actual investigative work, and the opinion also indicated (129 Ct. Cl. at 326, 121 F. Supp. at 645) that under that statute the head of the department and the Civil 'Service Commission had" }, { "docid": "22793222", "title": "", "text": "an opinion for the court, coming to a conclusion opposite to that of Judge Bennett, as to retirement pay but apparently mine was convincing only in a negative sense. It would be standard procedure to use it as a dissent, or the starting point for one, but I refrain from doing so here. Much of it discusses the reasons why Lindbergh Kirby’s discharge was illegal. The court says plaintiff’s arguments are “challenging” which is perhaps an understatement, but I am not sure it is proper to publish comments which might have precedential value about the merits of a case the court holds it lacks jurisdiction to decide. As to the statute of limitations, the court is plainly wrong in asserting it is not stating a new rule, citing Hames v. United States, 164 Ct. Cl. 746, cert. denied, 377 U.S. 904 (1964) and Palmer v. United States, 129 Ct. Cl. 322, 121 F. Supp. 643 (1954). Harms is cited just because it cites Pcd/rmr. Palmer is the important decision. The court correctly states the facts therein, and correctly summarizes the holdings. It is clear the ground, as to hazardous duty, is a valid reason for the decision. You cannot constructively earn a hazardous duty annuity, but can only do so by performing twenty years of hazardous duty. As the court concedes, however, that rule is not relevant here, because it is possible to earn constructively an annuity of the type plaintiff here lays claim to. Palmer’s other ground, the statute of limitations, is plainly wrong. The original papers, retrieved for me from the [Records Depository, show that Palmer had no money claim rising out of his unlawful demotion. After a brief period, he transferred to another Government agency at his old pre-demotion salary. He applied to the GAO, which paid him all he had lost while the demotion was in effect. Hé was not out of pocket one cent at that point. The published opinion in Palmer does not indicate the court was unaware of this. In saying that the demotion started our statute (28 U.S.C. § 2501) running, it" }, { "docid": "22793200", "title": "", "text": "however, the “all events” requirement to fix defendant’s liability has never transpired so plaintiff’s cause of action for a money judgment for retirement is nonexistent, having never accrued. It is true that entitlement to active duty back pay and retirement pay arise under different sections of the Code and accrue as the result of different events. Nonetheless, as noted above, there is a clear nexus between the two. Where the right to the first is demonstrated, the other may follow as a matter of course. It is the precise nature of this connection which requires further analysis. In pertinent part, 10 U.S.C. §8914 provides: “* * * a regular enlisted member of the Air Force who has at least 20, but less than 30, years of service computed under section 8925 of this title may, upon his request, be retired.” In the past this court has denied a reserve officer the right to retirement benefits under a similar provision (10 U.S.C. § 1331) for failing to complete the qualifying 20 years of service. Montilla v. United States, 198 Ct. Cl. 48, 457 F. 2d 978 (1972). The same unequivocal rule applies to an Air Force enlisted man under 10 U.S.C. § 8914. The plaintiff lias not served the required length of time to become eligible for the retirement benefits he now seeks. He attempts to avoid this obstacle by asking this court to re-examine and invalidate the May 1963 discharge proceedings in the context of this retirement claim, thereby giving him constructive credit for the years of active duty he did not serve between May 1963 and July 1967. Such a re-examination is clearly barred by the statute of limitations with respect to the active duty claim. As a result, the court does not feel that it has the power to hold otherwise in the context of the retirement claim. The stumbling block comes from the fact that once this plaintiff was officially discharged from the Air Force, he lost the right to earn future active duty pay and, since he had not, at that moment, completed 20 years of" }, { "docid": "22793202", "title": "", "text": "service, the future right to receive retirement pay and allowances lapsed as well. The plaintiff had 6 years in which to challenge in court the legality of his discharge in order to protect his right to fulfill his enlistment commitment and obtain the needed years of service for retirement. This he did not do and cannot be allowed to do at this time through the vehicle of the retirement claim. The one rests on the other like a house on a foundation; without the foundation, the house will not stand. In reaching this result, the court is not stating a new rule. Hames v. United States, 164 Ct. Cl. 746, cert. denied, 377 U.S. 904 (1964); Palmer v. United States, 129 Ct. Cl. 322, 121 F. Supp. 643 (1954). In Palmer, for instance, the court reached a similar conclusion where the plaintiff was seeking to obtain the difference between the retirement pay he would have received had he not allegedly been wrongfully demoted in 1944 from a hazardous duty position more than 6 years prior to filing the suit in 1953. Palmer alleged, as does Kirby, that procedural irregularities made his demotion (which he considered a wrongful discharge) invalid. The demotion to a nonhazardous duty position prevented the plaintiff from serving 20 years in the hazardous duty job, which was a prerequisite to receiving the higher hazardous duty retirement benefits. No back pay was claimed. Palmer retired in 1950. The court dismissed the petition on alternate grounds. First, the petition was filed too late: “Any claim 'based on that alleged removal [the demotion] is now barred by the six-year statute of limitations, 28 TJ.S.C. § 2501 (1952 ed.) * * *.”129 Ct. 'Cl. at 326,121 F. Supp. at 645. The second basis for dismissing the petition rested on the plaintiff’s failure to state a cause of action because the pertinent statute in that case required the plaintiff to spend 20 years of actual service in a hazardous duty position. The Palmer court treated the two bases for its decision as being completely independent of one another and there they plainly" }, { "docid": "22793204", "title": "", "text": "are, nothing in the opinion implying otherwise. However, we need not treat the facts of this case in precisely the same manner. As discussed before, the issue of when the statute of limitations begins to run, and when a plaintiff has stated a sufficient cause of action, may be interrelated, as here. In addition, this plaintiff does not need to show 20 years of actual service in order to qualify for the retirement benefits he now seeks. In Gearinger v. United States, supra, the court held, in a case where the statute of limitations was not an issue, that a serviceman can receive constructive active duty credit as part of a claim for active duty pay, which fulfills the requirements of the retirement statute. Plaintiff Kirby, however, has neither served the necessary 20 years, nor has he received constructive credit therefor. In effect, the plaintiff’s right to sue for retirement benefits has never accrued and will not accrue until he actually serves the requisite number of years or receives constructive credit for the same by voiding the discharge in an action for his active duty pay. These opportunities are closed to him by the Mathis case as discussed supra; thus, the plaintiff has not alleged a cause of action for which relief can be granted. The language in the opinion in Sauer v. United States, supra, does not aid the plaintiff in this case. In Sauer, the plaintiff, prior to 1944, had been employed by the Federal Bureau of Investigation where he had accumulated 89]4 days of unused annual leave. In 1944, the plaintiff transferred and sought to carry with him credit for the annual leave he had accumulated at the FBI. This request was finally denied him in 1953. The plaintiff did not sue to receive a lump sum amount for this uncredited unused leave until 1964, 3 years after he had retired from Government service. The defend ant’s primary defense was that the plaintiff’s cause of action had accrued in 1944, or at the latest in 1953; therefore, the petition was too late when filed in 1964. In" }, { "docid": "22793213", "title": "", "text": "same lawsuit. As the facts now stand, the plaintiff has not served the 20 years required by the statute for retirement. Until he has served or received constructive credit for such service he has no right to the retirement benefits he now seeks. The oral argument was made that this places a burden on a discharged serviceman who doesn’t care to be restored to his position in the service because he is lucky enough to go out and find an equal or higher paying job as in Palmer. In such a case he must nevertheless contest the discharge when, in fact, he stands to gain no monetary recovery since he has no damages for lost pay. Under these circumstances, it is said, he should be allowed to sue for retirement pay at the time he would have retired. The short answer to this idea supporting the proposition that a man should, be permitted to sue at his convenience, for retirement on the basis of time not served, is that if the serviceman is discharged without having served 20 years, and he is unwilling to protect his right to continue to serve within the reasonable length of time provided by law, then he has no basis for seeking benefits that are supposed to accrue only to those who serve honorably for 20 years. Any other rule than here announced will lead to the filing of stale claims 25 years old, or older, and emasculate the statute of limitations. This is contrary both to law and public policy. Friedman v. United States, 159 Ct. Cl. 1, 11, 310 F. 2d 381, 387-88 (1962). Our statute of limitations is jurisdictional and must be strictly construed to avoid prosecution of stale claims which defendant can be prejudiced in contesting because excessive lapse of time dulls memories, accounts for missing witnesses, and occasions periodic, routine destruction of Government records. Crown Coat Front Co. v. United States, 386 U.S. 503, 517 (1967) ; Feldman v. United States, 149 Ct. Cl. 22, 32, 181 F. Supp. 393, 400 (1960); Dawnic S.S. Corp. v. United States, 90 Ct." }, { "docid": "22793223", "title": "", "text": "therein, and correctly summarizes the holdings. It is clear the ground, as to hazardous duty, is a valid reason for the decision. You cannot constructively earn a hazardous duty annuity, but can only do so by performing twenty years of hazardous duty. As the court concedes, however, that rule is not relevant here, because it is possible to earn constructively an annuity of the type plaintiff here lays claim to. Palmer’s other ground, the statute of limitations, is plainly wrong. The original papers, retrieved for me from the [Records Depository, show that Palmer had no money claim rising out of his unlawful demotion. After a brief period, he transferred to another Government agency at his old pre-demotion salary. He applied to the GAO, which paid him all he had lost while the demotion was in effect. Hé was not out of pocket one cent at that point. The published opinion in Palmer does not indicate the court was unaware of this. In saying that the demotion started our statute (28 U.S.C. § 2501) running, it must have had in mind that Palmer could have sued for a declaratory judgment, or mandamus. In Sauer v. United States, 173 Ct. Cl. 642, 354 F. 2d 302 (1965), obviously a more carefully considered decision, we held that the possibility of seeking remedies outside the Court of Claims, such as declara tory judgment or mandamus, does not start § 2501, tbe Court of Claims statute, running. Only the availability of a money claim does that. I consider that Sauer overrules the Palmer holding on the statute of limitations, and Palmer should not be cited here unless the court is prepared to reinstate it and overrule Sauer. You can’t treat a decision holding one thing and a decision holding the opposite, as 'both valid and binding authorities. Not only is Palmer bad law, but so is Mames in citing Palmer to dispose summarily of a claim that could have been thrown out for several other reasons. I would have held that an unlawfully discharged soldier could waive his claim for active duty pay and sue" }, { "docid": "22793214", "title": "", "text": "having served 20 years, and he is unwilling to protect his right to continue to serve within the reasonable length of time provided by law, then he has no basis for seeking benefits that are supposed to accrue only to those who serve honorably for 20 years. Any other rule than here announced will lead to the filing of stale claims 25 years old, or older, and emasculate the statute of limitations. This is contrary both to law and public policy. Friedman v. United States, 159 Ct. Cl. 1, 11, 310 F. 2d 381, 387-88 (1962). Our statute of limitations is jurisdictional and must be strictly construed to avoid prosecution of stale claims which defendant can be prejudiced in contesting because excessive lapse of time dulls memories, accounts for missing witnesses, and occasions periodic, routine destruction of Government records. Crown Coat Front Co. v. United States, 386 U.S. 503, 517 (1967) ; Feldman v. United States, 149 Ct. Cl. 22, 32, 181 F. Supp. 393, 400 (1960); Dawnic S.S. Corp. v. United States, 90 Ct. Cl. 537, 579 (1940). In conclusion, the court finds that plaintiff Kirby has, with respect to the active duty pay claim, filed his suit beyond the period allowed by the statute of limitations. With respect to the claim for retirement pay, the plaintiff has not shown the necessary length of service requisite to ¡bringing such a claim and he cannot obtain constructive credit for the missing years of service by challenging an alleged illegal discharge in the context of this claim for retirement benefits, for he waited too long. The .plaintiff’s motion for summary judgment is denied and the defendant’s cross-motion is granted. The petition is dismissed. Plaintiff served through four continuous re-enllstments except for a break from June 30,1950 to October 9,1950. Davis, Judge, dissenting in part: This limitations problem has occasioned much deliberation, and the result is Judge Bennett’s admirable opinion for the court, carefully keying the present decision to our prior reported rulings, and explaining its rationale. I think that the opinion is consistent with the court’s earlier holdings in the limitations" }, { "docid": "22793216", "title": "", "text": "field (except as indicated in note 1, supra). My understanding of the underpinning of Palmer v. United States, 129 Ct. Cl. 322, 121 F. Supp. 643 (1954), and Hames v. United States, 164 Ct. Cl. 746, cert. denied, 377 U.S. 904 (1964), is that a plaintiff suing for retirement pay (military or civilian) cannot go into the lawfulness of an adverse administrative action (removal or demotion) which accrued more than 6 years before commencement of suit if there is some statute indicating that Congress wanted the retired individual to have actually served the number of years required for retirement, or showing that Congress desired a particular administrative body to decide, on a discretionary basis, whether the plaintiff had earned or merited the particular type of retirement. In Palmer the court interpreted the “hazardous duty” retirement statute as requiring at least 20 years actual investigative work, and the opinion also indicated (129 Ct. Cl. at 326, 121 F. Supp. at 645) that under that statute the head of the department and the Civil 'Service Commission had substantial discretion to determine whether the employee deserved that kind of retirement. In Hames, there was a statute flatly disallowing credit “for any period of separation from the service in excess of three calendar days”, which we interpreted as requiring the Civil ¡Service Commission to leave out of account all periods of removal unless the employee had brought a timely action to set aside the removal as alleged. Eather than being based solely on limitations, both Palmer and Homes rested on a combination of limitations together with failure to state a claim for relief — i.e., the substantive statute which the Government invoked as a defense prevented the claimant 'from having a proper claim for retirement pay unless he 'had timely brought suit to overturn the prior adverse administrative action. Under that rule, the question in each case is whether there is any substantive legislation or regulation (apart from the statute of limitations) which suggests that Congress would want the claimant not to wait 'until his retirement to test some prior adverse action. As I" }, { "docid": "22793221", "title": "", "text": "so would find himself locked out by laches. In this particular case, the time-lag was short, and there appears to have been no prejudice to the Government by the delay, and accordingly I would hold laches not to be a bar. On the merits, I would hold for plaintiff but withhold giving my reasons since the court does not reach that issue. I regret that the court does not acknowledge that It Is overruling the unpublished order in Rynerson v. United States, No. 57-71, dated November 11, 1971. Though It did not happen to be reported, the Rynerson order, which was unanimous, came after oral argument and consideration by the then full court. 10 U.S.C. §§ 1331(d) and 1406 do not apply before October 1966, and, even after that date, do not apply to adverse actions reducing tbe number of years of creditable service upon whicli retired pay is computed. My dissent relates solely to the claim for retirement pay. I agree with the court as to active-duty pay. Nichols, Judge, dissenting: I had written an opinion for the court, coming to a conclusion opposite to that of Judge Bennett, as to retirement pay but apparently mine was convincing only in a negative sense. It would be standard procedure to use it as a dissent, or the starting point for one, but I refrain from doing so here. Much of it discusses the reasons why Lindbergh Kirby’s discharge was illegal. The court says plaintiff’s arguments are “challenging” which is perhaps an understatement, but I am not sure it is proper to publish comments which might have precedential value about the merits of a case the court holds it lacks jurisdiction to decide. As to the statute of limitations, the court is plainly wrong in asserting it is not stating a new rule, citing Hames v. United States, 164 Ct. Cl. 746, cert. denied, 377 U.S. 904 (1964) and Palmer v. United States, 129 Ct. Cl. 322, 121 F. Supp. 643 (1954). Harms is cited just because it cites Pcd/rmr. Palmer is the important decision. The court correctly states the facts" }, { "docid": "22793209", "title": "", "text": "is nothing harsh in this rule. At the moment a serviceman is discharged under conditions like these, he knows that he has not fulfilled the requirements necessary for retirement. It is incumbent upon him at that point to protect his right to serve further by timely attacking the discharge. He could do this by a suit for active duty back pay, reinstatement, mandamus, or declaratory judgment in an appropriate court. A timely challenge in this manner to the discharge would not accrue a cause of action for a 20-year retirement immediately but would make it foreseeable by protecting the opportunity to earn it, which was not done here. Prior to enactment of Pub. L. No. 92-415, on August 29, 1972, 86 Stat. 652, plaintiff could have sought declaratory judgment or restoration to his position only in the United States District Court and recovered back pay there for less than $10,000. Said Act, however, gave reinstatement jurisdiction to the Court of Claims “as an incident of and collateral to” a money judgment within its general jurisdiction to enter money judgments under the Tucker Act. This court does not have declaratory judgment jurisdiction except in renegotiation cases pursuant to Pub. L. No. 92-41, § 3, 85 Stat. 97, 98 (1971). Lykes Bros. S.S. Co. v. United States, 198 Ct. Cl. 312, 459 F. 2d 1393 (1972). The Court of Claims does not otherwise have general equity powers or declaratory judgment authority. United States v. King, 395 U.S. 1 (1969). These Acts did not affect the statute of limitations pertinent here. For instance, we cannot restore a discharged Government employee to his job if his claim for back pay is barred by the statute of limitations. Nor can we enter a declaratory judgment that plaintiff Kirby was wrongfully discharged when the time has elapsed within which we could give -him a money judgment for back pay. To do so would be, in effect, reinstating plaintiff to his position for several years for retirement pay purposes, which, for reasons noted above, is beyond our authority. As stated in United States v. King, supra, before" }, { "docid": "22793196", "title": "", "text": "Force 'Board for Correction of Military Records, which appeal was denied on January 17,1968. 'It is clear that these post-discharge remedies which the plaintiff pursued were permissive in nature and do not serve to toll the running of the statute of limitations. Mathis v. United States, supra, 183 Ct. Cl. at 147, 391 F. 2d at 939; Kirk v. United States, 164 Ct. Cl. 738, 742-43 (1964); Lipp v. United States, 157 Ct. Cl. 197, 199, 301 F. 2d 674, 675 (1962), cert. denied, 373 U.S. 932 (1963). Plaintiff does not contend otherwise. Therefore, as the plaintiff has conceded with respect to the claim for active duty pay, the petition was filed too late to be considered iby the court. The second and more important issue left for the court’s consideration is whether the plaintiff’s claim for the retirement pay also falls if the claim for active duty pay is barred 'by 28 U.'SjC. § 2501. The question may be stated in this way: May plaintiff bring an action for retirement pay more than 6 years subsequent to the date of his final discharge when his entitlement to retirement depends upon invalidating the discharge ? In an affirmative answer to the foregoing question, plaintiff attempts to draw a distinction between the active duty claim and the retirement claim by arguing that if the discharge is found to be illegal as a matter of law, then he should receive constructive credit for the years still to be served under his last 6-year enlistment contract up to July 9, 1967, at which point he could have retired with more than 20 years of active service to his credit. Thus, since July 9,1967, was the first time he would have been eligible for retirement, it is claimed to be also the first time he could have sued for retirement pay and, therefore, is the date upon which his cause of action for retired pay first accrued for statute of limitations purposes. If all of the plaintiff’s premises are accepted, it is clear that the petition filed in October of 1971 was timely with" }, { "docid": "21288923", "title": "", "text": "Congress specifically said constructive service was to be taken into account ‘for all purposes.’ ” Bailey, 158 Ct.Cl. at 392. The Bailey court noted that the statute in question “sa[id] noting about constructive service; it speaks only of service on the active list nor on active duty. Id. When an enlisted man is discharged, he is neither on the active list nor an active duty.” Id. (Emphasis added.) The Bailey court also distinguished between constructive service credit specified by Congress for other inactive periods, such a service on the retired list, or in the Reserve, and constructive service where there was no actual “service,” i.e., post-discharge. Id. The facts in this case provide an even weaker basis for allowing constructive credit than those in Bailey. Like the pay statute in Bailey, the source of the benefit here, 10 U.S.C. § 619, does not specify that constructive service may be taken into account. Unlike Bailey, however, where there was express statutory authority for up to three months credit for each early discharge, there is no statutory basis here for any award of constructive credit. Rather, § 1552, the source of the Secretary’s authority to correct records and award relief incident thereto, does not authorize, explicitly or otherwise, any allowance of constructive service credit, but only “pecuniary benefits.” See 10 U.S.C. § 1552(c). Defendant cites, and this court has found, no judicial decision holding that reinstatement pursuant to § 1552 may give rise to “constructive credit” for any purpose other than the award of back pay or of “other pecuniary benefits.” Rather, the cases allow constructive credit for other than actual service only when a statute specifically authorizes it. See Palmer v. United States, 121 F.Supp. 643, 129 Ct.Cl. 322 (1954) (holding that 28 U.S.C. § 691(d), which requires a serviceman to “render [] 20 years of service” as a condition of entitlement to early retirement from a hazardous duty post allows actual service rendered prior to a previous promotion to be counted toward minimum time in grade promotion requirements because § 691(d) “explicitly states that service credit can be used to" }, { "docid": "22793207", "title": "", "text": "the suit is filed, and where the last event necessary to sue has occurred less than 6 years before, the court is perfectly free to examine the operative facts determinative of the issues involved, even if they have taken place more than 6 years before. Neither is the court using the statute of limitations to foreclose the examination of an issue that is part of a larger, single cause of action. With respect to the retirement claim, however, the plaintiff must allege that he has received credit (actual or constructive) for 20 years of service before he has stated a sufficient cause of action. Challenging the validity of the discharge as a means of obtaining constructive service time could only be done as a part of the active duty claim. Once the plaintiff has let that opportunity lapse, he has likewise lost the opportunity to challenge the discharge in the retirement context. Stated another way, when a plaintiff seeks retired pay based on 20 years of service he must be able to show either that he has that service by actually having served it or by having •received constructive credit therefor by invalidating a discharge which prevented the required actual service. Plaintiff has done neither, so he states no cause of action for which relief can be granted within our jurisdiction, as heretofore noted. The back pay claim and the retirement claim are not severable under the facts of this case. The first underpins the second. The claim for back active duty (pay is admittedly dead, killed by age and the affliction of the statute of limitations. The retirement claim here can exist only if the back pay claim exists so they must be interred together. It would be very strange, indeed, to allow recovery for the retirement claim and deny it for active duty when both claims depend upon voiding the same discharge. Once the discharge became effective, the theoretical end of plaintiff’s enlistment, which was thereby cut short, is meaningless for purposes of the statute of limitations or for determining when the retirement cause of action accrues. There" }, { "docid": "22793208", "title": "", "text": "he has that service by actually having served it or by having •received constructive credit therefor by invalidating a discharge which prevented the required actual service. Plaintiff has done neither, so he states no cause of action for which relief can be granted within our jurisdiction, as heretofore noted. The back pay claim and the retirement claim are not severable under the facts of this case. The first underpins the second. The claim for back active duty (pay is admittedly dead, killed by age and the affliction of the statute of limitations. The retirement claim here can exist only if the back pay claim exists so they must be interred together. It would be very strange, indeed, to allow recovery for the retirement claim and deny it for active duty when both claims depend upon voiding the same discharge. Once the discharge became effective, the theoretical end of plaintiff’s enlistment, which was thereby cut short, is meaningless for purposes of the statute of limitations or for determining when the retirement cause of action accrues. There is nothing harsh in this rule. At the moment a serviceman is discharged under conditions like these, he knows that he has not fulfilled the requirements necessary for retirement. It is incumbent upon him at that point to protect his right to serve further by timely attacking the discharge. He could do this by a suit for active duty back pay, reinstatement, mandamus, or declaratory judgment in an appropriate court. A timely challenge in this manner to the discharge would not accrue a cause of action for a 20-year retirement immediately but would make it foreseeable by protecting the opportunity to earn it, which was not done here. Prior to enactment of Pub. L. No. 92-415, on August 29, 1972, 86 Stat. 652, plaintiff could have sought declaratory judgment or restoration to his position only in the United States District Court and recovered back pay there for less than $10,000. Said Act, however, gave reinstatement jurisdiction to the Court of Claims “as an incident of and collateral to” a money judgment within its general jurisdiction" } ]

[ { "docid": "18937253", "title": "", "text": "Oak Wood deducted in 1971 an allocated portion of the 1.625 percent received by Simmons by prorating the 18-month construction period to the 8-month construction period occurring in 1971. With respect to accrual method taxpayers, interest is deducted as it accrues, which is ratably over the period of the loan; Higginbotham-Bailey-Logan Co. v. Commissioner, 8 B.T.A. 566 (1927); Court Holding Co. v. Commissioner, 2 T.C. 531 (1943), approved and affd. in 324 U.S. 331 (1945); James Brothers Coal Co. v. Commissioner, 41 T.C. 917 (1964). The interest deduction cannot be accelerated by payment in advance. B. F. Goodrich Co. v. Commissioner, 1 T.C. 1098 (1943). Sums constituting a bonus charged for making the loan must be amortized over the life of the loan, and are not deductible in full if the notes do not mature until after the close of the year. Court Holding Co. v. Commissioner, 2 T.C. at 536. Consequently, petitioner’s stance with regard to current deductibility of all the interest as a result of accrual accounting is erroneous. Amortization is required and the duration of each loan becomes a significant factor in determining the length of time over which interest must be amortized. After considering all the facts, we conclude that each partnership had one loan of an approximate duration of 40 years. First, the provision contained within the instrument executed between a mortgagor and a lender controls the rate for any prepaid interest commitment fee deductions. There is nothing in the instruments in this case that indicates an agreement to any specific allocation for the construction period. Interest is considered to accrue ratably over the life of the loan in the absence of an agreement as to the amount of discount allocated to each monthly payment. James Brothers Coal Co. v. Commissioner, supra at 922. Petitioner argues that respondent erroneously treats an accrual method taxpayer in the same manner as a cash method taxpayer by forcing both to deduct interest in the form of points on a loan discount as both pay the interest. He asserts this is contrary to James Brothers Coal Co. v. Commissioner," } ]

[ { "docid": "6303915", "title": "", "text": "ordinarily a corporation must be respected as a separate entity for tax purposes. Moline Properties, Inc. v. Commissioner, 319 U.S. 436 (1943); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442 (1934). Generally, if a corporation was created or functions for some business purpose, its separate existence may not be disregarded and its income may not be attributed to its shareholders either on the ground that it was merely a sham or on the ground that it was the agent of its shareholders. Moline Properties, Inc. v. Commissioner, supra; National Carbide Corp. v. Commissioner, 336 U.S. 422 (1949); Harrison Property Management Co. v. United States, 201 Ct. Cl. 77, 475 F.2d 623 (1973), cert. denied 414 U.S. 1130 (1974). In the instant case, however, the issue is not whether HPC must be recognized as a separate taxable entity, but rather who was the actual purchaser under the installment contract. Cf. Red Carpet Car Wash, Inc. v. Commissioner, 73 T.C. 676, 685-686 (1980). We are not deciding who is taxable on the payments Aragon made to HPC. Sec. 709(a) expressly provides that organization and syndication expenses are not deductible, except as provided in sec. 709(b). Sec. 709(b) allows a partnership to elect to amortize organizational expenses over a period of not less than 60 months. Sec. 709(b) applies only to organizational expenses paid or incurred in taxable years beginning after Dec. 31, 1976. Sec. 213(f)(3), Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1549, 1976-3 C.B. (Vol. 1) 24-25." }, { "docid": "3162692", "title": "", "text": "able. Cf. Tomlinson v. Dwelle, 318 F.2d 60 (5 Cir., 1963). The taxpayers’ opposing arguments do not persuade us. They are: 1. The intervening presence and posture of National. The argument here is that National is a separate entity, actually and for income tax purposes, that its presence is not to be ignored, and that its activities cannot be imputed to Frank and McNatt. The taxpayers assert that they were not the sole or even the major customers of National; that National’s business was a bona fide commercial activity; that it earned commissions, filed returns, and paid its own income taxes; that it dealt with the taxpayers just as it did with its other clients; and that some stock repossessed by the taxpayers was not sold through National. As the petitioners urge, a corporation is usually regarded for tax purposes as an entity separate and distinct from its shareholders. Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 438-439, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943); National Carbide Corp. v. Commissioner, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779 (1949); Greenspon v. Commissioner, supra, p. 951 of 229 F.2d There are, however, recognized exceptions. See Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). It has been said, too, that the fact of existence of a corporation does not make it the agent of its shareholders. Moline Properties, Inc. v. Commissioner, supra, p. 440 of 319 U.S., p. 1134 of 63 S.Ct. Such agency is a separate question. National Carbide Corp. v. Commissioner, supra, pp. 437-438 of 336 U.S., p. 734 of 69 S.Ct. These principles are, of course, to be accepted. National may be regarded as a bona fide corporation and its commission income as properly taxable to it. But the gains on the sales of the taxpayers’ shares of Bankers and Peoples are what are involved here. It is not a question of taxing these gains to National or of National’s income being taxed to Frank and McNatt. It is a question, instead, whether National was acting as agent for the taxpayers in business" }, { "docid": "9836272", "title": "", "text": "to prevent Ford Motor Co. from discovering petitioner’s involvement, although the amount of the investment was nonetheless reflected on petitioner’s monthly financial statements. Based on the foregoing, we conclude that Enterprises was a mere nominee whose name was used for a partnership interest which was beneficially owned by petitioner. Petitioner supplied the only item necessary for obtaining the partnership interest, the requisite capital contribution, while Enterprises made no contribution to the partnership or engaged in any type of activity with regard thereto. We do not believe that under these circumstances Moline Properties, Inc. v. Commissioner, 319 U.S. 436 (1943), requires that Enterprises be recognized as the owner of the partnership interest. In reaching the above conclusion, we are not unmindful of the general rules that normally a corporation will be respected as a separate entity for tax purposes (New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442 (1934); Weigman v. Commissioner, 47 T.C. 596, 604 (1967), affd. per curiam 400 F.2d 584 (9th Cir. 1968)), and that a taxpayer, having the freedom to structure his activities as he may choose, is bound by the consequences of that choice, including the tax disadvantages of utilizing a corporate structure. Moline Properties, Inc. v. Commissioner, supra; Higgins v. Smith, 308 U.S. 473 (1940). Furthermore, any demand by shareholders of a closely held corporation that the corporate structure be ignored must be closely scrutinized. Strong v. Commissioner, 66 T.C. 12 (1976), affd. 553 F.2d 94 (2d Cir. 1977). However, the issue here is not whether Enterprises must be recognized as a separate taxable entity, but is who was the actual owner of the partnership interest. The fact that Enterprises had not been activated during 1973 simply adds weight to the argument that petitioner was intended to be and was the actual owner of the partnership interest. Unlike in some of the cases cited above, neither Lange nor petitioner utilized Enterprises to conduct any business activity or even to hold title to property. Here, Lange, acting on the spur of the moment upon the misunderstood advice from Ginsberg, simply utilized Enterprises’ name to disguise" }, { "docid": "9836271", "title": "", "text": "asserts that Enterprises was the record owner of the partnership interest, that a valid business purpose existed for the formation of Enterprises, and that Enterprises’ corporate existence and record ownership cannot be ignored in determining which entity is entitled to the loss, citing Moline Properties, Inc. v. Commissioner, 319 U.S. 436 (1943). Petitioner’s argument is the familiar one of substance over form. Petitioner asserts that it is the beneficial owner of the partnership interest and is entitled to deduct the loss since it was the entity for which an investment was sought, it supplied the money with which the partnership interest was purchased, Enterprises did not conduct any business activities in 1973, and Enterprises’ name was used solely to prevent the nature of the investment from being disclosed to Ford Motor Co. The facts are not subject to dispute. It is clear that a tax shelter investment was sought for petitioner and that the investment in Rollingwood was intended for petitioner. Additionally, we are convinced that the partnership interest was listed in Enterprises’ name solely to prevent Ford Motor Co. from discovering petitioner’s involvement, although the amount of the investment was nonetheless reflected on petitioner’s monthly financial statements. Based on the foregoing, we conclude that Enterprises was a mere nominee whose name was used for a partnership interest which was beneficially owned by petitioner. Petitioner supplied the only item necessary for obtaining the partnership interest, the requisite capital contribution, while Enterprises made no contribution to the partnership or engaged in any type of activity with regard thereto. We do not believe that under these circumstances Moline Properties, Inc. v. Commissioner, 319 U.S. 436 (1943), requires that Enterprises be recognized as the owner of the partnership interest. In reaching the above conclusion, we are not unmindful of the general rules that normally a corporation will be respected as a separate entity for tax purposes (New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442 (1934); Weigman v. Commissioner, 47 T.C. 596, 604 (1967), affd. per curiam 400 F.2d 584 (9th Cir. 1968)), and that a taxpayer, having the freedom to structure" }, { "docid": "5233848", "title": "", "text": "Ct. Cl. 77, 475 F.2d 623 (1973), cert. denied 414 U.S. 1130 (1974), wherein the Court of Claims treated the dependency of the corporate-\"principal” relations on the ownership of the corporation as the deciding factor in rejecting a corporate agency argument. Nims, J., dissenting: While I sympathize to some extent with the majority’s efforts to rescue these petitioners from a quandary not entirely of their own making, but rather one created by the concept of usury rendered archaic by the cold reality of contemporary economics, nevertheless I find it inappropriate to here sanction an end-run around Moline Properties and its holding that so long as the purpose of incorporation is the equivalent of business activity, or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity. Moline Properties v. Commissioner, 319 U.S. 436 (1943). The Courts have been confronted with just such an effort by the Commissioner in the one-person corporation arena, for example, where the Commissioner purports to recognize the legitimacy of the corporation but then proceeds to vitiate its effectiveness as a separate taxable entity by seeking to reallocate all of its income to the sole shareholder under the anticipatory assignment of income doctrine. See Rubin v. Commissioner, 429 F.2d 650 (2d Cir. 1970), revg. 51 T.C. 251 (1968). It may well be that, as posited by Emerson, a foolish consistency is the hobgoblin of little minds, but here consistency is not foolish and judicial even-handedness requires it. It seems indisputable, in the case before us, that to avoid the Louisiana usury law there had to be some substance to the corporation’s activities beyond the mere functioning as nominee or agent for the actual owners. In this case, the corporation’s activities went far beyond the mere holding of title: as the findings of fact indicate, the corporation took title to the property, executed a mortgage note for a construction loan, contracted for the construction of the property, and executed a note and mortgage for the permanent financing. True, the corporation and the partnership entered into various side agreements purporting to" }, { "docid": "15510705", "title": "", "text": "nothing. For reasons well stated in his published opinion, relying largely on Harrison Property Management Co., Inc. v. United States, 1973, 475 F.2d 623, 201 Ct.Cl. 77, as well as Moline Properties v. Commissioner of Internal Revenue, 1943, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499, and National Carbide Corp. v. Commissioner of Internal Revenue, 1949, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779, the district judge ruled that the corporate entity could not be ignored in the situation presented and entered judgment for the United States. The United States was entitled by law to the summary judgment granted by the district court. Affirmed. . Collins et al. v. United States of America, S.D.Ga.1974, 386 F.Supp. 17. The decision is also reported unofficially at 35 A.F.T.R. 75-497. . On the authority of National Carbide, text supra; Harrison Property Management, Inc., text supra; Greer v. Commissioner of Internal Revenue, 5 Cir. 1964, 334 F.2d 20, 23-24, and Given v. Commissioner of Internal Revenue, 8 Cir. 1956, 238 F.2d 579, the district judge correctly rejected an alternative contention that Bencap, Inc. was merely the agent or trustee of the individual plaintiffs in the role performed by it, and that, so regarded, they were entitled to claim the interest and depreciation deductions to which Bencap, Inc. was nominally entitled." }, { "docid": "14331252", "title": "", "text": "70 S.Ct. 280, 94 L.Ed. 251; Howell Turpentine Co. v. Commissioner, 5 Cir., 1947, 162 E.2d 319; United States v. Cummins Distilleries Corporation, 6 Cir., 1948, 166 F.2d 17, 20-21. . Gregory v. Helvering, 1935, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 598. . Chisholm v. Commissioner, 2 Cir., 1935, 79 F.2d 14, 15, 101 A.L.R. 200. . Chisholm v. Commissioner, supra, 79 F.2d at page 15. . New Colonial Ice Co., Inc., v. Helvering, 1934, 292 U.S. 435, 441-442, 54 S.Ct. 788, 78 L.Ed. 1348. See the writer’s opinion in Pacific Magnesium, Inc. v. Westover, D.C.Cal., 1949, 86 F.Supp. 644, affirmed in Pacific Magnesium, Inc., v. Westover, 9 Cir., 1950, 183 F.2d 584. . Higgins v. Smith, 1940, 308 U.S. 473, 477, 60 S.Ct. 355, 358, 84 L.Ed. 406. . Southern Pacific Company v. Lowe, 1918, 247 U.S. 330, 337, 38 S.Ct. 540, 62 L.Ed. 1142. . Burnet v. Commonwealth Improvement Co., 1932, 287 U.S. 415, 419-420, 53 S.Ct. 198, 77 L.Ed. 399; Moline Properties, Inc., v. Commissioner, 1943, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499; Inland Development Co. v. Commissioner, 10 Cir., 1941, 120 F.2d 986. . National Carbide Corp. v. Commissioner, 1949, 336 U.S. 422, 69 S.Ct. 720, 93 L.Ed. 779. . National Carbide Corp. v. Commissioner, supra, 336 U.S. at page 429, 69 S.Ct. at page 730. And see, John L. Denning & Company v. Commissioner, 10 Cir., 1950, 180 F.2d 288, 290-291; Bond v. Commissioner, 1950, 14 T.C. 478, 482-484; Estate of Whitfield v. Commissioner, 1950, 14 T.C. 776, 782-784. . Moline Properties, Inc., v. Commissioner, 1942, 319 U.S. 436, 438-439, 63 S.Ct. 1132, 1134, 87 L.Ed. 1499. In the same case, Mr. Justice Reed, in giving the true meaning of the oft-quoted passages from Higgins v. Smith, 1940, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406, and Gregory v. Helvering, 1935, 293 U.S. 465, 469, 55 S.Ot. 266, 79 L.Ed. 596, states: “In general, in matters relating to the revenue, the corporate form may be disregarded where it is a sham or unreal. In such situations the form" }, { "docid": "6303914", "title": "", "text": "L of its 1973 return, Aragon claimed this same amount of fixed assets. At an interest rate of 3.5 percent per annum (simple interest), the maximum amount of interest which would accrue on the sum of $1,472,000 for a period of 1¡4 years is $77,280. The articles of agreement, on the other hand, provided that the entire $192,000 (128,000 + 64,000) of prepaid interest was payable for interest accruing in 1973 and 1974. This inconsistency is particularly astounding considering the fact that a copy of the articles of agreement was attached to the prospectus. Even if HPC had performed such services, Aragon would not have been entitled to deduct the full amount of the payments for those services in the year paid. Payments for services in' connection with the acquisition of a loan are capital expenditures which must be amortized over the life of the loan. Wilkerson v. Commissioner, 70 T.C. 240, 253-257, 261-262 (1978), on appeal (9th Cir., Oct. 1, 1979); Lay v. Commissioner, 69 T.C. 421, 437-440 (1977). We recognize the fact that ordinarily a corporation must be respected as a separate entity for tax purposes. Moline Properties, Inc. v. Commissioner, 319 U.S. 436 (1943); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442 (1934). Generally, if a corporation was created or functions for some business purpose, its separate existence may not be disregarded and its income may not be attributed to its shareholders either on the ground that it was merely a sham or on the ground that it was the agent of its shareholders. Moline Properties, Inc. v. Commissioner, supra; National Carbide Corp. v. Commissioner, 336 U.S. 422 (1949); Harrison Property Management Co. v. United States, 201 Ct. Cl. 77, 475 F.2d 623 (1973), cert. denied 414 U.S. 1130 (1974). In the instant case, however, the issue is not whether HPC must be recognized as a separate taxable entity, but rather who was the actual purchaser under the installment contract. Cf. Red Carpet Car Wash, Inc. v. Commissioner, 73 T.C. 676, 685-686 (1980). We are not deciding who is taxable on the payments Aragon made" }, { "docid": "11152979", "title": "", "text": "court. It follows that the Commissioner was right in his determination. Judgment will, therefore, be for the Defendant that the plaintiff take nothing by the Complaint. . 26 U.S.C.A. § 3772. . 26 U.S.C.A. § 22(a). . 26 U.S.C.A. § 22(b) (3). Regulation 111, Sec. 29.22(2)-13. . Klein v. Board of Tax Supervisors, 1930, 282 U.S. 19, 24, 51 S.Ct. 15, 75 L.Ed. 140, 73 A.L.R. 679; New Colonial Co. v. Helvering, 1934, 292 U.S. 435, 442, 54 S.Ct. 788, 78 L.Ed. 1348; Burnet v. Commonwealth Improvement Co., 1932, 287 U.S. 415, 419-420, 53 S.Ct. 198, 77 L.Ed. 399; see, National Carbide Corp. v. Commissioner, 1949, 336 U.S. 422, 428-429, 69 S.Ct. 726. “A taxpayer is free to adopt such organization for his affairs as he may choose and having elected to do some business as a corporation, he must accept the tax disadvantages. “On the other hand, the Government may not be required to acquiesce in the taxpayer’s election of that form for doing business which is most advantageous to him. The Government may look at actualities and upon determination that the form employed for doing business or carrying out the challenged tax event is unreal or a sham may sustain or disregard the effect of the fiction as best serves the purposes of the tax , statute. To hold otherwise would permit the schemes of taxpayers to supersede legislation in the determination of the time and manner of taxation. It is command of income and its benefits which marks the real owner of property.” Higgins v. Smith, 1940, 308 U.S. 473, 477-478, 60 S.Ct. 355, 358, 84 L.Ed. 406. . Moline Properties v. Commissioner, 1943, 319 U.S. 436, 438-439, 63 S.Ct. 1132, 1134, 87 L.Ed. 499. “The decisive question is whether the corporations were created to, or did, in fact, serve a recognizable business purpose.” O’Neill v. Commissioner, 2 Cir., 1948, 170 F.2d 596, 598. “If the corporate device -is used for business advantages, there is no just ground for protests when it results in tax liability.” Railway Express Agency v. Commissioner, 2 Cir., 1948, 169 F.2d 193," }, { "docid": "6303913", "title": "", "text": "to characterize Smigel as operating the apartment complex in any capacity other than as owner. On brief, petitioner argued that the following cases supported a finding that the accoutrements of ownership were transferred on July 1, 1973: Clodfelter v. Commissioner, 426 F.2d 1391 (9th Cir. 1970), affg. 48 T.C. 694 (1967); Commissioner v. Baertschi, 412 F.2d 494 (6th Cir. 1969), revg. 49 T.C. 289 (1967); Deyoe v. Commissioner, 66 T.C. 904 (1976). We, however, have carefully considered each of these cases and have found them readily distinguishable from the instant case. Having reached this conclusion, we deem it unnecessary to further decide whether the installment contract constituted only an option to purchase the apartment complex as argued by respondent. See United States. Freight Co. v. United States, 190 Ct. Cl. 725, 422 F.2d 887 (1970); Estate of Franklin v. Commissioner, 64 T.C. 752 (1975), affd. 544 F.2d 1045 (9th Cir. 1976). Interestingly, the statement of financial position prepared by Aragon’s accountants stated that Aragon had fixed assets before depreciation of $1,537,250. In addition, on Schedule L of its 1973 return, Aragon claimed this same amount of fixed assets. At an interest rate of 3.5 percent per annum (simple interest), the maximum amount of interest which would accrue on the sum of $1,472,000 for a period of 1¡4 years is $77,280. The articles of agreement, on the other hand, provided that the entire $192,000 (128,000 + 64,000) of prepaid interest was payable for interest accruing in 1973 and 1974. This inconsistency is particularly astounding considering the fact that a copy of the articles of agreement was attached to the prospectus. Even if HPC had performed such services, Aragon would not have been entitled to deduct the full amount of the payments for those services in the year paid. Payments for services in' connection with the acquisition of a loan are capital expenditures which must be amortized over the life of the loan. Wilkerson v. Commissioner, 70 T.C. 240, 253-257, 261-262 (1978), on appeal (9th Cir., Oct. 1, 1979); Lay v. Commissioner, 69 T.C. 421, 437-440 (1977). We recognize the fact that" }, { "docid": "6303901", "title": "", "text": "Commissioner, 57 T.C. 315, 322 (1971). Amounts denominated as interest cannot be deducted where the underlying transaction was a sham. See Collins v. Commissioner, 54 T.C. 1656, 1664 (1970). In reality, the transaction herein under consideration did not create a genuine indebtedness, and therefore, Aragon was not entitled to any interest expense deduction for 1973. Significantly, the prospectus discloses that the purported $1,472,000 indebtedness was determined by adding the total prepaid interest ($192,000) to the balance due under the mortgage on the apartment complex. Nevertheless, the articles of agreement stated that the same $192,000 represented interest on said indebtedness. Furthermore, the prospectus reveals that the interest rate charged under the articles of agreement was manipulated to provide monthly payments equaling those required under the mortgage. Moreover, we have found as a fact that Aragon did not make the monthly payments to HPC, and we believe that there never was any intention that these payments would be made. Clearly, this contrivance did not establish a genuine indebtedness. HPC did not forbear the collection of any money, and Aragon did not obtain the use of any of HPC’s funds. The indebtedness established under the articles of agreement was a facade used to support the claimed interest deductions. When Aragon became the owner of the apartment complex, the only indebtedness was based on the underlying mortgage. While the prospectus stated that HPC would accept the prepaid interest as ordinary income, we consider that fact irrelevant since it was simply an element of the facade \"to clothe the payment with the garb of interest,” Collins v. Commissioner, supra at 1665. Moreover, we believe that all of the labels attached to the $370,000 paid by Aragon to HPC and Smigel lacked economic reality. Compare LaCroix v. Commissioner, 61 T.C. 471 (1974); Titcher v. Commissioner, supra; Collins v. Commissioner, supra. Each label was a component in Reilly’s plan to promote Aragon as a tax shelter investment. Petitioner has not shown that Aragon was entitled to any deduction for the claimed contract financing points. While the prospectus stated that HPC would be paid $32,000 \"for its services" }, { "docid": "5233818", "title": "", "text": "corporation. Glenmore Manor Apartments, Inc., was a separate taxable entity whose business purpose and activities related entirely to the complex. It was the legal owner of the assets that generated the taxable losses during 1975 and 1976, and therefore should be responsible for reporting the taxable events on its returns. From the outset, petitioners concede that the corporate form should not be disregarded. On brief, petitioners admit that the corporation was a viable entity. They admit the obvious inconsistency inherent in prior cases wherein taxpayers would argue, on the one hand, that the corporate entity should be disregarded, and on the other hand, that the corporation was their agent. See, e.g., Strong v. Commissioner, 66 T.C. 12, 21 (1976), affd. without opinion 553 F.2d 94 (2d Cir. 1977); Harrison Property Management Co. v. United States, 201 Ct. Cl. 77, 475 F.2d 623, 626-627 (1973), cert. denied 414 U.S. 1130 (1974). Therefore, we need consider only whether Glenmore Manor Apartments, Inc., functioned as an agent for the partnership, or whether the corporation, itself, was the proper taxable entity. We need not consider as controlling those cases dealing solely with whether a corporation should be disregarded. We begin by repeating the well-established doctrine of corporate entity: Whether the purpose be to gain an advantage under the law of the state of incorporation or to avoid or to comply with the demands of creditors or to serve the creditor’s personal or undisclosed convenience, so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity. * * * [Moline Properties v. Commissioner, 319 U.S. 436, 438-439 (1943). Fn. refs, omitted.] In Moline, the Supreme Court considered whether the existence of a corporation should be ignored for purposes of determing whether income on the sale of real property should be taxed to a corporation or its sole shareholder. The Court held that the corporate entity should be respected because it was organized for valid business purposes, had a special function from its inception and carried on" }, { "docid": "6303902", "title": "", "text": "and Aragon did not obtain the use of any of HPC’s funds. The indebtedness established under the articles of agreement was a facade used to support the claimed interest deductions. When Aragon became the owner of the apartment complex, the only indebtedness was based on the underlying mortgage. While the prospectus stated that HPC would accept the prepaid interest as ordinary income, we consider that fact irrelevant since it was simply an element of the facade \"to clothe the payment with the garb of interest,” Collins v. Commissioner, supra at 1665. Moreover, we believe that all of the labels attached to the $370,000 paid by Aragon to HPC and Smigel lacked economic reality. Compare LaCroix v. Commissioner, 61 T.C. 471 (1974); Titcher v. Commissioner, supra; Collins v. Commissioner, supra. Each label was a component in Reilly’s plan to promote Aragon as a tax shelter investment. Petitioner has not shown that Aragon was entitled to any deduction for the claimed contract financing points. While the prospectus stated that HPC would be paid $32,000 \"for its services relating to the first mortgage financing,” the record contains nothing that even suggests HPC performed such services. Moreover, since the mortgage financing was acquired by Smigel and the National Bank of Austin in 1972, it is unlikely that HPC performed any services in connection with the acquisition of this financing. While the prospectus stated that Reilly would be paid $52,750 in 1973 and $28,000 in 1974 for \"general supervision” of both Aragon and the day-to-day operation of the apartment complex, no evidence has been offered to show either the nature or degree of the supervision Reilly provided to Aragon. In fact, aside from the prospectus, there is no other evidence that supports the denomination of these amounts as management fees. Significantly, the findings of fact show that the amounts purportedly payable to Reilly as management fees were actually paid to HPC. In addition, we have found that Aragon was not the owner of the apartment complex during 1973, and that Smigel, not Reilly, was in complete control of its day-to-day operation during that year. Under" }, { "docid": "15510704", "title": "", "text": "PER CURIAM: This appeal requires that we consider whether the district court, presented with cross-motions for summary judgment on stipulated facts, was correct when it granted summary judgment for the United States in these consolidated income tax refund suits. The question involved is whether (A) Bencap, Inc., a corporate entity formed for the single purpose of obtaining a temporary loan during construction of an apartment project — because the only loan money available would have been at a usurious rate under state law if made to the individuals carrying out the project — was a taxable entity required to report as its own income and expenses generated by the construction project, or (B) whether the six individual principals of the corporation, plaintiffs-appellants here, are entitled to ignore the corporate structure and report the income and expenses as their own. The parties stipulated before the trial court that if Bencap, Inc. was not a taxable entity, the taxpayers were entitled to recover $45,004.46, but that if Bencap, Inc. was a taxable entity the taxpayers should recover nothing. For reasons well stated in his published opinion, relying largely on Harrison Property Management Co., Inc. v. United States, 1973, 475 F.2d 623, 201 Ct.Cl. 77, as well as Moline Properties v. Commissioner of Internal Revenue, 1943, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499, and National Carbide Corp. v. Commissioner of Internal Revenue, 1949, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779, the district judge ruled that the corporate entity could not be ignored in the situation presented and entered judgment for the United States. The United States was entitled by law to the summary judgment granted by the district court. Affirmed. . Collins et al. v. United States of America, S.D.Ga.1974, 386 F.Supp. 17. The decision is also reported unofficially at 35 A.F.T.R. 75-497. . On the authority of National Carbide, text supra; Harrison Property Management, Inc., text supra; Greer v. Commissioner of Internal Revenue, 5 Cir. 1964, 334 F.2d 20, 23-24, and Given v. Commissioner of Internal Revenue, 8 Cir. 1956, 238 F.2d 579, the district judge correctly rejected" }, { "docid": "10354363", "title": "", "text": "refund were duly filed by the corporation, and disallowed on March 28, 1969, resulting in this suit. On the major issue of whether the management corporation is itself taxable on its income, there are well-established standards which confine and guide our ruling. The Supreme Court has spoken twice, in Moline Properties, Inc. v. Commissioner, 319 U.S. 436 (1943), and National Carbide Corp. v. Commissioner, 336 U.S. 422 (1949). The precedents in this court are Garner v. United States, 188 Ct. Cl. 202, 412 F. 2d 233 (1969), and Love v. United States, 119 Ct. Cl. 384, 96 F. Supp. 919 (1951). A leading case in the courts of appeals is Tomlinson v. Miles, 316 F. 2d 710 (C.A. 5), cert. denied, 375 U.S. 828 (1963). Under the principles declared and applied in those decisions, it is very clear that— putting aside for the moment the contract (which plaintiffs call an agreement of agency) made by the individuals with the corporation at the time it was set up — the corporation was taxable. The paramount principle is that stockholders of a closely held corporation cannot demand (Subchapter S aside) that it be ignored for federal income tax purposes — at least if it is more than a pure sham and was created or acts for some business end. “The doctrine of corporate entity fills a useful purpose in business life. Whether the purpose be to gain an advantage under the law of the state of incorporation or to avoid or to comply with the demands of creditors or to serve the creator’s personal or undisclosed convenience, so long as tbat purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity.” Moline Properties, Inc. v. Commissioner, supra, 319 U.S. at 438-39 (footnotes omitted). Where individuals adopt the corporate form for purposes of their own, the choice of the advantages of incorporation to do business requires “the acceptance of the tax disadvantages.” Ibid. It is immaterial that the shareholders remain the beneficial owners of the property transferred" }, { "docid": "5233847", "title": "", "text": "the Court in National Carbide added two absolutes: If a corporation is a true agent, its relations with its principal must not be dependent upon the fact that it is owned by the principal, if such is the case. Its business purpose must be the carrying on of the normal duties of an agent. [336 U.S. at 437; emphasis added.] Treating those absolutes as mere \"factors” simply ignores the language of National Carbide. Indeed, the Fifth Circuit Court of Appeals, to which an appeal herein would lie, has clearly distinguished between National Carbide’s \"relevant considerations” and its \"absolutes” by designating the latter as \"crucial factors.” Jones v. Commissioner, 640 F.2d 745, 755 (5th Cir. 1981). Given the rule of National Carbide and the majority opinion’s finding of fact concerning the dependent relations between the corporation and the partnership, I would hold that, for tax purposes, the corporation was not a mere agent of the partnership. Irwin, Wilbur, and Chabot, JJ., agree with this dissenting opinion. ^ee also Harrison Property Management Co. v. United States, 201 Ct. Cl. 77, 475 F.2d 623 (1973), cert. denied 414 U.S. 1130 (1974), wherein the Court of Claims treated the dependency of the corporate-\"principal” relations on the ownership of the corporation as the deciding factor in rejecting a corporate agency argument. Nims, J., dissenting: While I sympathize to some extent with the majority’s efforts to rescue these petitioners from a quandary not entirely of their own making, but rather one created by the concept of usury rendered archaic by the cold reality of contemporary economics, nevertheless I find it inappropriate to here sanction an end-run around Moline Properties and its holding that so long as the purpose of incorporation is the equivalent of business activity, or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity. Moline Properties v. Commissioner, 319 U.S. 436 (1943). The Courts have been confronted with just such an effort by the Commissioner in the one-person corporation arena, for example, where the Commissioner purports to recognize the legitimacy of the corporation but then" }, { "docid": "19865237", "title": "", "text": "was experienced in commercial property management. It is obvious from the sequence of events that it was his personal expertise that was acquired by the maintenance contract. The maintenance contract in effect gave complete control over E & T to Taxpayer (who had absolute control of Chertkof Co.), and with it power to use E & T in many ways which could inure to him financially. Normally, unless a corporation is a sham, courts refuse to “pierce the corporate veil” to attribute its activities to its individual stockholders. Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348 (1934). Courts, however, are not restricted to a fairyland view of business and may disregard the separate entity where the transaction lacks a business purpose and is a mere formality. Juniper Investment Co. v. United States, 338 F.2d 356, 168 Ct.Cl. 160 (1964). See DeWitt Truck Brokers, Inc. v. W. Ray Fleming Fruit Co., 540 F.2d 681 (4th Cir. 1976). Additionally, a corporation and its stockholders may be considered one entity for one purpose and separate entities for another. United States v. Goldberg, 206 F.Supp. 394 (E.D. Pa.), aff’d, 330 F.2d 30 (3rd Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964). It would take a simplistic view of the intrafamily business dealings reflected by the record to hold other than the Tax Court held — that the maintenance contract was in reality a contract between E & T and Taxpayer. It follows that the family attribution rules of section 318 were not waived because Taxpayer reacquired interests forbidden by 302(c)(2)(A)(ii). Not having all his stock redeemed, the payments received were not capital gains but ordinary dividend income. AFFIRMED. . Taxpayer’s asserted ground for capital gains treatment was under 26 U.S.C. § 302(b)(3)— “complete redemption of all the stock of the corporation owned by the shareholder.” In determining the ownership of stock for purposes of this section, however, the family attribution rules contained in 26 U.S.C. § 318" }, { "docid": "14697991", "title": "", "text": "framework, this transaction should be judged on the basis of the facts presented. Petitioner contends that, in reality, it had no income because it did nothing to earn the income. Indeed, it could not have done anything based upon the findings of fact since it had no employees, performed no services, dealt with no customers, and did not even receive the payment of the amounts of income, which respondent argues it earned, until the following year. Normally, the choice of doing business in corporate form will be respected. Whether the purpose be to gain an advantage under the law of the state of incorporation or to avoid or to comply with the demands of creditors or to serve the creator’s personal or undisclosed convenience, so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity. * * * [Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 438-439 (1943). Emphasis added.] However, tax avoidance, standing alone, is not sufficient to meet the business purpose test in Moline Properties and the fact finding in this case indicates clearly that there was no other business purpose and no business activity. See National Carbide Corp. v. Commissioner, 336 U.S. 422 (1949); Noonan v. Commissioner, 52 T.C. 907 (1969), affd. 451 F.2d 992 (9th Cir. 1971); Aldon Homes, Inc. v. Commissioner, 33 T.C. 582 (1959). The only thing that petitioner did that might be construed as corporate activity was to maintain a bank account and separate records, and act as a conduit regarding funds of APC. These are minimum DISC requirements. See sec. 1.992-1(a)(1) through (8). Even respondent’s own regulations explicitly recognize that DISC qualification (which requires incorporation, books and records, a bank account, and payments) entitles a corporation to be recognized for tax purposes “even though such corporation would not be treated (if it were not a DISC) as a corporate entity for Federal income tax purposes.” Sec. 1.992-l(a), Income Tax Regs. One can hardly imagine a corporate entity more devoid of substance than petitioner" }, { "docid": "19865236", "title": "", "text": "distribution, and (iii) the distributee, at such time and in such manner as the Secretary by regulations prescribes, files an agreement to notify the Secretary of any acquisition described in clause (ii) and to retain such records as may be necessary for the application of this paragraph. The Tax Court upheld the Commissioner’s determination that the Taxpayer retained stock interest after the attempted redemption because he did not comply with subsection (ii) above in that through the maintenance contract between Chertkof Co. and E & T, Taxpayer maintained a financial and control interest in E & T. It is the correctness of this holding that is in issue. If the holding is correct, the tax on E & T’s redemption payment to the Taxpayer is ordinary dividend income tax rather than capital gains tax. It is true that Chertkof Co. is a bona fide corporation. Its essential purpose, however, is engineering; it had never before managed property or engaged in the kind of commercial activity required by the maintenance contract. Taxpayer, on the other hand, was experienced in commercial property management. It is obvious from the sequence of events that it was his personal expertise that was acquired by the maintenance contract. The maintenance contract in effect gave complete control over E & T to Taxpayer (who had absolute control of Chertkof Co.), and with it power to use E & T in many ways which could inure to him financially. Normally, unless a corporation is a sham, courts refuse to “pierce the corporate veil” to attribute its activities to its individual stockholders. Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348 (1934). Courts, however, are not restricted to a fairyland view of business and may disregard the separate entity where the transaction lacks a business purpose and is a mere formality. Juniper Investment Co. v. United States, 338 F.2d 356, 168 Ct.Cl. 160 (1964). See DeWitt Truck Brokers, Inc. v. W. Ray Fleming Fruit Co., 540 F.2d 681" }, { "docid": "12002167", "title": "", "text": "that the corporation was a viable taxable entity so long as the purpose of its creation is the equivalent of business activity or its creation is followed by the carrying on of business by the corporation. In Mo-line Properties, the question of purpose to evade or avoid income taxes (through the use of a corporation) was addressed as part of the theretofore live issue whether the corporation was a viable taxable entity or a sham. Although, as a practical matter the “viability” objection has apparently now fallen into general disuse, the Moline Properties analysis is still fundamental. National Carbide Corp. v. Commissioner, 336 U.S. 422, 429-30, 69 S.Ct. 726, 730, 93 L.Ed. 779 (1949). See also Siegel v. Commissioner, 45 T.C. 566 (1966); Bass v. Commissioner, 50 T.C. 595 (1968). We think it inappropriate, in light of Moline Properties and National Carbide, except on more extreme facts than appear here, to achieve, through recourse to the assignment of income doctrine, essentially the same result as would follow from treating the Corporation as a “sham” for tax purposes. See also New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442, 54 S.Ct. 788, 791, 78 L.Ed. 1348 (1934). The instant case is not unlike the early case of Fontaine Fox v. Commissioner, 37 B.T.A. 271 (1938), where a cartoonist transferred to his corporation his cartoon copyrights and various contracts pursuant to which he earned royalties and entered into an agreement with the corporation to render his services exclusively to it for a fixed salary. The corporation, in turn, made a contract with a distributor, who made payments to the corporation based on the percentage of sales of newspapers carrying taxpayer’s cartoons. In Fontaine Fox, the Board of Tax Appeals distinguished Lucas v. Earl on the grounds that, rather than an assignment of income, Fox involved an assignment of property (the contracts with distributors); subsequent income arising from such property was income not of the assignor but of the assignee. Accord, Laughton v. Commissioner, 40 B.T.A. 101 (1939), rem’d, 113 F.2d 103 (9th Cir. 1940). Although we do not regard the point" } ]

[ { "docid": "8695944", "title": "", "text": "1938, 69 App.D.C. 51, 98 F.2d 332, the applicant was seeking claims on a critical range of chromium-manganese-nickel-copper ferrous alloys which had certain unique properties, i. e. both stainless and deep drawing. The prior art disclosed a range of the same alloying ingredients. The Court held that the references were inadequate to anticipate and that the prior art seems neither to have sought nor to have found an alloy which is both stainless and deep drawing.” The Court also held that the Becket proportions were “critical.” In the instant case plaintiff’s assignors claim proportions that are “critical.” See also Ludlum Steel Co. v. Terry, D.C.N.Y.1928, 37 F.2d 153; General Electric Co. v. Hoskins Mfg. Co., 7 Cir., 1915, 224 F. 464; American Stainless Steel Co. v. Ludlum Steel Co., 2 Cir., 1923, 290 F. 103. In the case of In re Tanczyn, 1953, 202 F.2d 785, 787, 40 C.C.P.A.Patents 886, three claims in the application for a patent directed to wrought and polished straight chromium steel products substantially free of surface defacing complex silicate inclusions were rejected by the Examiner, and his decision was affirmed by the Board of Appeals of the Patent Office. The issue raised there was whether the petitioner’s claims were disclosed by the prior art. The Court of Customs and Patent Appeals answered this question in the negative, holding that although the prior art does show two specific alloy compositions falling within the range recited in petitioner’s claims, there was no indication that the prior art was at all concerned with petitioner’s purpose — that is, producing stainless steel products free of surface defects. The Court stated: “Not only does neither reference in any way suggest any solution for eliminating such defects, but neither indicates that the author even recognized that such a problem existed, or that he attempted to trace its source.” The claims in issue cover a critical range of proportions which this Court holds define a novel alloy having an unique microstructure and extraordinary new properties. The prior art, while it admittedly discloses compositions or alloys having chemical analyses falling within the range" } ]

[ { "docid": "17265702", "title": "", "text": "a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer. See id. at 782 (“Congress has not seen fit to permit the patenting of an old [composition], known to others ..., by one who has discovered its ... useful properties.”); Verdegaal Bros., 814 F.2d at 633. This court’s decision in Titanium Metals illustrates these principles. See Titanium Metals, 778 F.2d at 775. In Titanium Metals, the patent applicants sought a patent for a titanium alloy containing various ranges of nickel, molybdenum, iron, and titanium. The claims also required that the alloy be “characterized by good corrosion resistance in hot brine environments.” Titanium Metals, 778 F.2d at 776. A prior art reference disclosed a titanium alloy falling within the claimed ranges, but did not disclose any corrosion-resistant properties. This court affirmed a decision of the PTO Board of Appeals finding the claimed invention unpatentable as anticipated. This court concluded that the claimed alloy was not novel, noting that “it is immaterial, on the issue of their novelty, what inherent properties the alloys have or whether these applicants discovered certain inherent properties.” Id. at 782. This same reasoning holds true when it is not a property, but an ingredient, which is inherently contained in the prior art. The public remains free to make, use, or sell prior art compositions or processes, regardless of whether or not they understand their complete makeup or the underlying scientific principles which allow them to operate. The doctrine of anticipation by inherency, among other doctrines, enforces that basic principle. The trial record contains exhaustive evidence regarding the inherency of both interstitial and porous air in the Egly and Butterworth compositions within the overlapping ranges. The testimony firom expert witnesses for both parties established that whether sufficient air is present in the explosive composition to facilitate detonation is a function of the ratio of the emulsion to the solid constituent. Dr. Clay testified that “if you mix porous prills, for example, with 30% typical water-in-oil emulsions, you’re going to have air in there" }, { "docid": "23469794", "title": "", "text": "pages), highly technical, and contains 10 graphs as part of the discussion. As its title indicates, it relates to ternary Ti-Mo-Ni alloys, the subject'oINthe application at bar. The examiner and the board both found that it would disclose to one skilled in the art an alloy on which at least claims 1 and 2 read, so that those claims would not be allowable under the statute because of lack of novelty of their subject matter. Since the article does not specifically disclose such an alloy in words, a little thinking is required about what it would disclose to one knowledgeable about Ti-Ni-Mo alloys. The PTO did that thinking as follows: Figure lc [a graph] shows data for the ternary titanium alloy which contains Mo and Ni in the ratio of 1:3. Amongst the actual points on the graph is one at 1% Mo + Ni. At this point, the amounts of Mo and Ni would be 0.25% and 0.75% respectively. A similar point appears on the graph shown in Figure 2 of the article. Appellants do not deny that the data points are disclosed in the reference. In fact, the Hall affidavit indicates at least two specific points (at 1% and 1.25% Mo + Ni) which would represent a description of alloys falling within the scope of the instant claims. On that basis, the board found that the claimed alloys were not new, because they were disclosed in the prior art. It having been argued that the Russian article contains ' no disclosure of corrosion-resistant properties of any of the alloys, the board held: The fact that a particular property or the end use for this alloy as contemplated by appellants was not recognized in the article is of no consequence. It therefore held the Russian article to be an anticipation, noting that although the article does not discuss corrosion resistance, it does disclose other properties such as strength and ductility. The PTO further points out that the authors of the reference must have made the alloys to obtain the data points. Being dissatisfied with the decision of the board," }, { "docid": "23469795", "title": "", "text": "do not deny that the data points are disclosed in the reference. In fact, the Hall affidavit indicates at least two specific points (at 1% and 1.25% Mo + Ni) which would represent a description of alloys falling within the scope of the instant claims. On that basis, the board found that the claimed alloys were not new, because they were disclosed in the prior art. It having been argued that the Russian article contains ' no disclosure of corrosion-resistant properties of any of the alloys, the board held: The fact that a particular property or the end use for this alloy as contemplated by appellants was not recognized in the article is of no consequence. It therefore held the Russian article to be an anticipation, noting that although the article does not discuss corrosion resistance, it does disclose other properties such as strength and ductility. The PTO further points out that the authors of the reference must have made the alloys to obtain the data points. Being dissatisfied with the decision of the board, Titanium Metals Corporation of America, as assignee of the Covington and Palmer application, then brought an action in the District Court for the District of Columbia against the Commissioner pursuant to 35 U.S.C. § 145, its complaint alleging that the board’s decision “was erroneous and contrary to law,” and making proferí of a certified copy of the application and all papers in the file thereof, together with a copy of the Russian article which was the sole basis of the PTO refusal to allow the claims. It prayed that the court adjudge it entitled to a patent containing claims 1-3 and authorize the Commissioner to grant such a patent. The Commissioner filed an answer denying that the applicants were the first inventors of the alloys claimed or entitled to a patent, alleging that the claims are not patentable under the law, and making profert of the Examiner’s Answer, the Board of Appeals’ decision, and the prior art reference. The case came on for trial on January 24, 1980, before the Honorable John G. Penn and" }, { "docid": "22572581", "title": "", "text": "30% chromium, 2% to 12% nickel, 12% to 2% manganese, and 1% carbon, the sum of the percentages of nickel and manganese being between 8% and 20%. The inclusion of copper was stated in the specification in the following language : “The resistance of these alloys to certain corrosives can be improved by additions of Cu and Mo together or separately, a content of 6% of each of these elements being, in general, sufficient; their nonoxidizability at a red heat, an equally interesting property, by an addition of Si, of which a content up to 3% will generally suffice.” And in the résumé [claims] it was said: “This invention comprises: * * * “2. The addition to the alloy specified in [claim] (1) of the following elements, either in.combination or separately: a) of copper and of molybdenum, together or separately, each of these elements having a content going for example up to 6%. b) of silicon of which the content may go for example up to 3%. c) of known purging agents, such as aluminum, vanadium, titanium, zirconium. “3. A variant of the alloy specified in 1 and 2, in which the nickel is totally or partially replaced by cobalt.” Commentry gave no example of a specific alloy containing copper. He did, however, say that his alloy could be worked into tubes and wire-drawn filaments. It will at once be seen that the specifications set forth in the appellant’s claims 9, 10 and 11 fall within the ranges in the Hadfield (French) and Commentry (French) patents. We think, however, that the Hadfield (French) patent does not anticipate the Becket application. The properties which Hadfield particularly asserted were increased resistance to oxidization and scaling, resistance to flame and hot products of combustion, and great mechanical strength at high temperatures. Nothing in the patent indicates that he was aware that alloys made within the ranges which he claimed would be stainless and deep-drawing. It is true that he describes his alloy as resistant to corrosion by air, water, and acids, but general corrosion resistance seems to be a quality not equivalent to" }, { "docid": "3434617", "title": "", "text": "excess of about 2.35 according to the following equation: Nv = 4.66 (A% Cr + A% Mo) + 1.71 (A% Co) + 0.61 (A% Ni) the alloy being characterized by its freedom from precipitation of deleterious amounts of sigma-like phase after exposure at temperatures in excess of 1500 0 F for periods of time in excess of 1000 hours. Prior Art Lamb discloses a process for hot working age-hardenable nickel-chromium alloys. The alloys contain: Metals Percent by Weight aluminum 4.0 - 5.4 boron 0.003 - 0.1 chromium 14.0 - 16.0 carbon 0.01 - 0.2 cobalt 14.0 - 25.0 molybdenum 3.0 - 5.5 titanium 3.0 - 4.6 zirconium 0.01 - 0.2 A sample alloy is heated at 1190 ° C for 1.5 hours and cooled to 1000 ° C at about 1 ° C per minute, after which it may be hot worked at 1120 ° C. When hot working is complete, the alloy will generally require a further heat treatment to develop full creep resisting properties. Pohlman et al. disclose nickel base alloys suitable for elevated temperature operation containing: Metals Percent by Weight aluminum 4.2 - 4.6 boron 0.025 - 0.035 carbon 0.04 - 0.07 chromium 14.5 - 15.5 cobalt 14.5 - 15.5 molybdenum 4.5 - 5.5 titanium 3.3 - 3.7 The remainder of the alloys essentially comprises nickel and incidental impurities; possibly, also, small amounts of silicon and manganese. Both references are silent regarding an ■ Nv value requirement, although Lamb requires “a total aluminum and titanium content from about 7.75% to about 9.5%,” and Pohlman et al. “prefer about 14.5-15.5 percent by weight cobalt because that range results in the best balance at elevated temperatures between such properties as tensile and rupture strengths, oxidation resistance and the ability of the sheet material to be formed or worked.” The Boesch Affidavit Seven heats of alloys (appellants’ Table I below), which were within the claimed composition ranges but whose Nv values varied from 2.40 to 2.54 (all clearly above the upper limit of 2.35 set forth in the claims), were processed and heat treated. Appellants’ Table II shows that all" }, { "docid": "23469815", "title": "", "text": "at 548.] The court in that case also said: [W]e start with the proposition that claims cannot be obtained to that which is not new. This was the basis of the holding in In re Thuau [135 F.2d 344, 30 C.C.P.A. 979, 57 USPQ 324 (CCPA 1943)]. It was the law then, is now and will be until Congress decrees otherwise. [Id.] It is also an elementary principle of patent law that when, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is “anticipated” if one of them is in the prior art. In re Petering, 301 F.2d 676, 682, 49 C.C.P.A. 993, 1001, 133 USPQ 275, 280 (1962). For all of the foregoing reasons, the court below committed clear error and legal error in authorizing the issuance of a patent on claims 1 and 2 since, properly construed, they are anticipated under § 102 by the Russian article which admittedly discloses an alloy on which these claims read. B. Obviousness, §103 Little more need be said in support of the examiner’s rejection of claim 3, affirmed by the board, on the ground that its more specific subject matter would have been obvious at the time the invention was made from the knowledge disclosed in the reference. As admitted by appellee’s affidavit evidence from James A. Hall, the Russian article discloses two alloys having compositions very close to that of claim 3, which is 0.3% Mo and 0.8% Ni, balance titanium. The two alloys in the prior art have 0.25% Mo — 0.75% Ni and 0.31% Mo — 0.94% Ni, respectively. The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties. Appellee produced no evidence to rebut that prima facie case. The specific alloy of claim 3 must therefore be considered to have been obvious from known alloys. Conclusion For the foregoing reasons, the decision and order of the district court holding that claims 1, 2, and 3 are directed to patentable subject matter and authorizing the issuance of a patent thereon" }, { "docid": "13924757", "title": "", "text": "as to the equivalency of the several metals.” The board affirmed this rejection without discussion. As we view the matter, the etching process as applied to tantalum, being in effect in the “prior art” through publication of the British specification, the question is whether applying that process to zirconium, niobium, titanium and alloys of tantalum and niobium would be obvious to a person having ordinary skill in the art in view of the teaching of the Taylor patent. We feel sure it would. The Taylor patent relates to electrolytic condensers, which are the same as appellants’ electrolytic capacitors. Appellants recognized that it was old to use tantalum electrodes and that it was desirable to increase their surface area by etching them. Taylor likewise emphasizes tantalum as an electrode metal because it is a “film-forming corrosion-resistant metal” and recognizes the advantages of extended surface area. Along with tantalum he lists as other metals in the same category of known film-forming corrosion-resistant metals usable as electrolytic capacitor electrodes, zirconium, titanium and columbium (another name for niobium), exactly the same four elemental metals named by appellants. It being shown in the British specification that tantalum can be etched for use as an electrode metal by appellants’ process it seems to us that it would be most obvious to one skilled in the art, in view of the teaching of Taylor, to apply the same etching process to the other known electrolytic capacitor metals or to alloys of two of those metals. Appellants’ method as originally disclosed was designed to etch a metal most resistant to corrosion and hence difficult to etch, namely tantalum, and if it would etch, tantalum one would not be surprised if it etched the others. Certainly it would be obvious to try it and mere proof that it worked would not make it patentable over the disclosure of the British specification. 85 U. S. C. 103. The decision of the board is affirmed. Appellants Rave referred to tlie British “patent” as being theirs, which is only loosely true. For the sake of accuracy, it is noted that appellants appear" }, { "docid": "22572582", "title": "", "text": "vanadium, titanium, zirconium. “3. A variant of the alloy specified in 1 and 2, in which the nickel is totally or partially replaced by cobalt.” Commentry gave no example of a specific alloy containing copper. He did, however, say that his alloy could be worked into tubes and wire-drawn filaments. It will at once be seen that the specifications set forth in the appellant’s claims 9, 10 and 11 fall within the ranges in the Hadfield (French) and Commentry (French) patents. We think, however, that the Hadfield (French) patent does not anticipate the Becket application. The properties which Hadfield particularly asserted were increased resistance to oxidization and scaling, resistance to flame and hot products of combustion, and great mechanical strength at high temperatures. Nothing in the patent indicates that he was aware that alloys made within the ranges which he claimed would be stainless and deep-drawing. It is true that he describes his alloy as resistant to corrosion by air, water, and acids, but general corrosion resistance seems to be a quality not equivalent to stainlessness. For example, nickel resists many types of corrosion but tarnishes easily. Furthermore, the Hadfield (French)'patent does not disclose a comprehension that copper was an essential element of the alloy. It will be noted that Hadfield said that copper could be included up to 6% in combination with from 1% to 10% of tungsten or molybdenum, or separately; but although he spoke of the use of copper separately, the only example containing copper also-contained a substantial percentage of tungsten. Thus, although he mentions a chromium-manganese-nickel-copper ferrous alloy, he gives no example of such an alloy, nor does he reveal that he ever actually made an alloy which contained copper in the absence of tungsten. And the specific examples show further that Hadfield was-directing his attention primarily to a low-manganese alloy. ’Silicon was evidently regarded as an essential part of.the alloy. The Patent Office thought this immaterial, since all steel contains some silicon, and Becket had named the bulk of his alloy as “substantially all iron.” The so-called “residual silicon” present in practically all steel, however," }, { "docid": "12797153", "title": "", "text": "LOURIE, Circuit Judge. Lance G. Peterson and Ioannis Vasatis (collectively, “Peterson”) appeal from the decision of the U.S. Patent and Trademark Office (“PTO”) Board of Patent Appeals and Interferences affirming the rejection of claims 1-7 of U.S. Patent Application 08/365,392 as obvious under 35 U.S.C. § 103. Ex Parte Wood, Appeal No.1998-0535, Paper No. 19 (B.P.A.I. Apr. 23, 2001). Because substantial evidence supports the Board’s factual findings and the Board did not err in its conclusion of obviousness, we affirm. BACKGROUND On December 28, 1994, Mr. Peterson filed U.S. Patent Application 08/365,392, which is directed to a nickel-base single-crystal superalloy used in the manufacture of industrial gas turbine engines exposed to high temperatures. The claimed composition includes a relatively small amount of rhenium and aims to improve a single-crystal alloy’s mechanical strength without reducing its hot corrosion resistance. Representative claim 5 recites: A nickel-base superalloy having special utility in the production of single crystal gas turbine engine blades consisting essentially of about 1 to S percent rhenium, about Ik percent chromium, about 9.5 percent cobalt, about 3.8 percent tungsten, about 2 percent tantalum, about 1.5 percent molybdenum, about 0.05 percent carbon, about 0.004 percent boron and, respectively, from about 3 to 4.8 percent aluminum, from about 4.8 percent to about 3 percent titanium, and balance substantially nickel. (emphases added). Peterson and the Board considered that the other claims stand or fall with' claim 5, and we will therefore consider only claim 5. The examiner rejected claims 1-7 under 35 U.S.C. § 103 as obvious over the following prior art references: (1) published European Patent Application 240,451 (“Shah”); (2) published European Patent Application 076,360 (“Wukusick”) alone or in view of U.K. Patent 2,153,848 (“Duhl”); and (3) U.S. Patent 3,619,182 (“Bieber”) in view of Wukusick. For each ground of rejection, the examiner found a prima fa-cie case of obviousness based on the overlapping element ranges of the prior art compositions and the claimed composition. Peterson responded by arguing that his invention would not have been obvious because the prior art disclosed only the optional use of rhenium and did not suggest that" }, { "docid": "16516499", "title": "", "text": "recognized these inherent characteristics of the sprouts. MEHL/Biophile, 192 F.3d at 1365, 52 USPQ2d at 1305. Titanium Metals Corp. v. Banner is particularly instructive in this regard. In that case, the claim at issue recited: A titanium base alloy consisting essentially by weight of about 0.6% to 0.9% nickel, 0.2% to 0.4% molybdenum, up to 0.2% maximum iron, balance titanium, said alloy being characterized by good corrosion resistance in hot brine environments. Titanium Metals, 778 F.2d at 776, 227 USPQ at 774. The prior art disclosed a titanium base alloy having the recited components of the claim, but the prior art did not disclose that such an alloy was “characterized by good corrosion resistance in hot brine environments.” We nevertheless held that the claim was anticipated by the prior art, because “it is immaterial, on the issue of their novelty, what inherent properties the alloys have or whether these applicants discovered certain inherent properties.” Id. at 782, 774 F.2d 483, 227 USPQ at 779. Titanium Metals explained the rationale behind this common sense conclusion: The basic provision of Title 35 applicable here is § 101, providing in relevant part: “Whoever invents or discovers any new ... composition of matter, or any new ... improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” ... [C]ounsel never came to grips with the real issues: (1) what do the claims cover and (2) is what they cover new? Under the laws Congress wrote, they must be considered. Congress has not seen fit to permit the patenting of an old alloy, known to others through a printed publication, by one who has discovered its corrosion resistance or other useful properties, or has found out to what extent one can modify the composition of the alloy without losing such properties. Id. at 780, 782, 778 F.2d 775, 227 USPQ at 777-78. Brassica has done nothing more than recognize properties inherent in certain prior art sprouts, just like the corrosion resistance properties inherent to the prior art alloy in Titanium Metals. While Brassica may have recognized something quite interesting" }, { "docid": "12797154", "title": "", "text": "about 3.8 percent tungsten, about 2 percent tantalum, about 1.5 percent molybdenum, about 0.05 percent carbon, about 0.004 percent boron and, respectively, from about 3 to 4.8 percent aluminum, from about 4.8 percent to about 3 percent titanium, and balance substantially nickel. (emphases added). Peterson and the Board considered that the other claims stand or fall with' claim 5, and we will therefore consider only claim 5. The examiner rejected claims 1-7 under 35 U.S.C. § 103 as obvious over the following prior art references: (1) published European Patent Application 240,451 (“Shah”); (2) published European Patent Application 076,360 (“Wukusick”) alone or in view of U.K. Patent 2,153,848 (“Duhl”); and (3) U.S. Patent 3,619,182 (“Bieber”) in view of Wukusick. For each ground of rejection, the examiner found a prima fa-cie case of obviousness based on the overlapping element ranges of the prior art compositions and the claimed composition. Peterson responded by arguing that his invention would not have been obvious because the prior art disclosed only the optional use of rhenium and did not suggest that controlled amounts of rhenium would result in advantageous mechanical properties. Peterson also pointed to the unexpected results achieved by his invention: namely, the increased stress rupture life resulting from the addition of a small amount of rhenium. The examiner rejected those arguments in a final office action, finding that Peterson had failed to show criticality of the selected amount of rhenium commensurate in scope with the claims. The Board affirmed the examiner’s rejection. First, the Board found that the disclosure of overlapping ranges in Shah, Wukusick, and Bieber each established a prima facie case of obviousness. With respect to the rejection based primarily on Wukusick, the Board determined that the claimed range of “about 14 percent chromium” encompassed Wukusick’s teaching to use up to 12% chromium. Secondly, the Board found that Peterson had failed to show that the claimed alloy possesses properties that would have been considered unexpected by a person of ordinary skill in the art. Specifically, the Board found that Peterson had not compared the claimed invention with the closest prior art (Wukusick’s" }, { "docid": "13924756", "title": "", "text": "a year before the applicant’s effective filing date in the United States. A filing date, to be effective, must be that of an application which supports the claims. Appellants’ earlier applications fail them in this respect. Of course, it is of no moment whether the bar of a patent, printed publication, public use or sale results from the acts of the applicant or of others, so the circumstance that the British specification was applicants’ own cannot be taken into account. There remains for consideration the species claims 19-22, directed to the method as applied to the metals or alloys other than tantalum. The principal argument as to these claims is that the British specification is not usable as a reference but we have held otherwise. It disclosed the tantalum species of the method. The examiner combined therewith the Taylor patent 2,368,688 and said in his rejection, “As stated in Taylor, Zr, fib and Ti are known equivalents of Ta.” He said also that Taylor was cited merely to verify “the previous statement of common knowledge as to the equivalency of the several metals.” The board affirmed this rejection without discussion. As we view the matter, the etching process as applied to tantalum, being in effect in the “prior art” through publication of the British specification, the question is whether applying that process to zirconium, niobium, titanium and alloys of tantalum and niobium would be obvious to a person having ordinary skill in the art in view of the teaching of the Taylor patent. We feel sure it would. The Taylor patent relates to electrolytic condensers, which are the same as appellants’ electrolytic capacitors. Appellants recognized that it was old to use tantalum electrodes and that it was desirable to increase their surface area by etching them. Taylor likewise emphasizes tantalum as an electrode metal because it is a “film-forming corrosion-resistant metal” and recognizes the advantages of extended surface area. Along with tantalum he lists as other metals in the same category of known film-forming corrosion-resistant metals usable as electrolytic capacitor electrodes, zirconium, titanium and columbium (another name for niobium), exactly" }, { "docid": "23500688", "title": "", "text": "non-infringement recommendations in the previous report, and recommending that Jes-sop be awarded attorney fees on the basis that Haynes should have known that its in fringement claim would be barred by prosecution history estoppel, and its suit was therefore frivolous. On May 21, 1991, the district court judge, in a memorandum order, adopted the magistrate’s recommendations. On June 14, 1991, the court entered a final decision granting Jessop’s motion for summary judgment of non-infringement, and awarding Jessop attorney fees in accordance with the previous memorandum order. This appeal followed. II. DISCUSSION The sole claim in the ’414 patent reads: 1. The wrought product form of an alloy consisting essentially of, in weight percent, about 22 chromium, about 13 molybdenum, about 3 tungsten, less than 0.5 colum-bium, less than 0.5 tantalum, less than 0.1 carbon, less than 0.2 silicon, less than 0.5 manganese, about 3 iron, less than 0.7 aluminum plus titanium, less than 0.5 vanadium and the balance nickel plus impurities wherein the ratio of molybdenum to tungsten is within the range 3:1 to 5:1, wherein the ratio of iron to tungsten is within the range 1:1 to 3:1, and wherein said ratios provide said alloy with an optimum combination of corrosion resistant properties in a variety of corrosive media and hot and cold working properties to permit production of thin sheet, tubing and other commercial forms. (Emphasis ours.) The dispute in this ease centers on the about 22 chromium limitation, Jessop conceding that its alloy meets all the other limitations of the claim. It is undisputed that Jessop’s alloy has a chromium content of between 20.74 to 20.81%. The district court concluded that this limitation is not met by Jessop’s alloy, either literally or under the doctrine of equivalents. The basis for its conclusion on the doctrine of equivalents issue was prosecution history estoppel. That portion of the judgment is before us on appeal. A. Standard of Review This court reviews a grant of summary judgment to determine whether any genuine issues of material fact are in dispute, and whether any errors of law were made. London v. Carson" }, { "docid": "13924745", "title": "", "text": "aforesaid original application. This second application was filed as a result of a Patent Office requirement of division. The original application became abandoned on February 7,1953. On May 13,1953, the complete British specification No. 691,509 was published as a result of an application filed August 21, 1951, which specification is, except for the claims, substantially a copy of appellants’ aforesaid original United States application. It was, in fact, a convention application based thereon. On May 9, 1955, appellants, filed a third application, serial No. 507,010, the one involved in this appeal, as a continuation-in-part of the second application. This third application added to the disclosure of tantalum the metals zirconium, titanium, niobium, and alloys of tantalum and niobium, on the basis of which generic and certain species claims were added to the case. The two continuation-in-part applications contained the cross-references to the earlier applications required by 35 U. S. C. 120 and there was also the necessary copendency to comply with that statute. On July 21, 1955, the examiner issued a final rejection of claims 1-3 and 19-22 for “lack of invention over” the British specification, relying on In re Steenbách, 23 C. C. P. A. (Patents) 1244, 83 F. 2d 912, 30 USPQ 45, as controlling. He allowed claims 4-18, which were directed to tantalum, the sole metal disclosed in the original application. On February 13,1957, the Board of Appeals affirmed the examiner, also holding the Steenboclc case to be controlling, and saying: Appellants do not show possession of the invention described in the claims on appeal with respect to zirconium, niobium or titanium at a time prior to the patenting date of the British patent. Of course, we do not know anything about the patenting date, if any, of the British specification and the board was no doubt referring to its publication date. We shall make that assumption. However, we do not understand the examiner’s rejection to have been predicated on appellants’ failure to have been in possesion of the invention of the appealed claims before the publication of the British specification. What the examiner said in his" }, { "docid": "17265701", "title": "", "text": "in either Egly or Butterworth. To invalidate a patent by anticipation, a prior art reference normally needs to disclose each and every limitation of the claim. See Standard Havens Prods., Inc. v. Gencor Indus., Inc., 953 F.2d 1360, 1369, 21 USPQ2d 1321, 1328 (Fed.Cir.1991). However, a prior art reference may anticipate when the claim limitation or limitations not expressly found in that reference are nonetheless inherent in it. See id.; Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628, 630, 2 USPQ2d 1051, 1053 (Fed.Cir.1987). Under the principles of inherency, if the prior art necessarily functions in accordance with, or includes, the claimed limitations, it anticipates. See In re King, 801 F.2d 1324, 1326, 231 USPQ 136, 138 (Fed.Cir.1986). Inherency is not necessarily coter minous with the knowledge of those of ordinary skill in the art. See Titanium Metals, 778 F.2d at 780. Artisans of ordinary skill may not recognize the inherent characteristics or functioning of the prior art. See id. at 782. However, the discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer. See id. at 782 (“Congress has not seen fit to permit the patenting of an old [composition], known to others ..., by one who has discovered its ... useful properties.”); Verdegaal Bros., 814 F.2d at 633. This court’s decision in Titanium Metals illustrates these principles. See Titanium Metals, 778 F.2d at 775. In Titanium Metals, the patent applicants sought a patent for a titanium alloy containing various ranges of nickel, molybdenum, iron, and titanium. The claims also required that the alloy be “characterized by good corrosion resistance in hot brine environments.” Titanium Metals, 778 F.2d at 776. A prior art reference disclosed a titanium alloy falling within the claimed ranges, but did not disclose any corrosion-resistant properties. This court affirmed a decision of the PTO Board of Appeals finding the claimed invention unpatentable as anticipated. This court concluded that the claimed alloy was not novel, noting that “it is immaterial," }, { "docid": "23469792", "title": "", "text": "can be fabricated from it by rolling, welding and other techniques. The inventors apparently also found that iron content should be limited, iron being an undesired impurity rather than an alloying ingredient. They determined the permissible ranges of the components, above and below which the desired properties were not obtained. A precise definition of the invention sought to be patented is found in the claims, set forth below, claim 3 representing the preferred composition, it being understood, however, that no iron at all would be even more preferred. 1. A titanium base alloy consisting essentially by weight of about 0.6% to 0.9% nickel, 0.2% to 0.4% molybdenum, up to 0.2% maximum iron, balance titanium, said alloy being characterized by good corrosion resistance in hot brine environments. 2. A titanium base alloy as set forth in Claim 1 having up to 0.1% iron, balance titanium. 3. A titanium base alloy as set forth in Claim 1 having 0.8% nickel, 0.3% molybdenum, up to 0.1% maximum iron, balance titanium. The examiner’s final rejection, repeated in his Answer on appeal to the Patent and Trademark Office (PTO) Board of Appeals (board), was on the grounds that claims 1 and 2 are anticipated (fully met) by, and claim 3 would have been obvious from, an article by Kalabukhova and Mikheyew, Investigation of the Mechanical Properties of Ti-Mo-Ni Alloys, Russian Metallurgy (Metally) No. 3, pages 130-133 (1970) (in the court below and hereinafter called “the Russian article”) under 35 U.S.C. §§ 102 and 103, respectively. The board affirmed the examiner’s rejection. However, it mistakenly proceeded on the assumption that all three claims had been rejected as anticipated under § 102 by the Russian article and ignored the obviousness rejection. On this appeal the PTO says it does not pursue the § 103 rejection further. Appellee proceeds on the basis that only the § 102 rejection is before us. Both the examiner and the board had before them as evidence three affidavits by Rosenberg, Palmer, and Hall and a declaration by Minkler, by which they were not persuaded of patentability. The Russian article is short (3" }, { "docid": "12797159", "title": "", "text": "and Bieber teach away from the claimed invention by warning that high chromium contents can adversely affect alloy strength. The PTO responds that the Board correctly found that the claimed composition would have been obvious based on any one of the three grounds of rejection because Shah, Wukusick, and Bieber all disclose ranges of elements that overlap the claimed ranges. The PTO argues that the Board properly interpreted the phrase “about 14 percent chromium” to include Wukusick’s 12% chromium because Example I in Peterson’s application discloses a superalloy containing 12.03% chromium. The PTO further responds that the Board correctly determined that Peterson failed to overcome the prima facie case of obviousness. The PTO contends that substantial evidence supports the Board’s findings that Wukusick does not teach away from the invention and that Peterson faded to show unexpected results. Specifically, the PTO points out that Peterson’s specification shows improved performance in stress rupture life only for 2% rhenium, rather than for the full claimed range of about 1-3% rhenium, and that Peterson failed to compare his results with the closest prior art. A. The Prima Facie Case of Obviousness A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art. E.g., In re Geisler, 116 F.3d 1465, 1469, 43 USPQ2d 1362,1365 (Fed.Cir.1997); In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37 (CCPA 1990); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974). Such is the ease here. Claim 5 of Peterson’s application recites and Shah discloses superalloys having the following compositions: Rhenium about 1-3% 0- 7% Chromium about 14% 3-18% Cobalt about 9.5% 0-20% Tungsten about 3.8% 0-18% Tantalum about 2% 0-15% Molybdenum about 1.5% 0- 4% Carbon about 0.05% at least 0.002% Boron about 0.004% at least 0.002% Aluminum about 3^1.8% 3- 8% Titanium about 4.8% to about 3% 0- 5% Nickel balance balance Claim 5 Shah Clearly, Peterson’s application and Shah contain overlapping ranges, as each range listed in Peterson’s claim 5 lies within the corresponding range disclosed in Shah. Thus," }, { "docid": "16549692", "title": "", "text": "use of the term “about” shows that the applicants did not intend to limit the claimed ranges to then-exact end-points. See Jeneric/Pentron, Inc. v. Dillon Co. 205 F.3d 1377, 1381 (Fed.Cir.2000). Thus, contrary to Harris’s contention, Yoshinari’s preferred range of 5.5 to 7.0 is not necessarily outside the scope of “about 5.3.” Therefore, this court finds substantial evidence supports the Board’s finding that Yoshinari does not teach away. With respect to unexpected results, the Board concluded that Harris had not shown that any results were unexpected. Paper No. 16, slip. op. at 11-12. As evidence of unexpected results, Harris compares CMSX®-486, an alloy centrally located within claim l’s range, to four commercial alloys, namely CM247LC, CMSX-3, CM186LC and CMSX-681. All are prior art except CMSX-681. When compared to CM186LC, CMSX®-486 shows 32% to 43% improvement in stress rupture life. Harris argues CM186LC is the closest prior art because it differs from the claimed invention only in that it has 6.0% chromium rather than about 4.3% to 5.3%, and 3.4% tantalum rather than about 4.3% to 4.8%. While the results were not as favorable when compared against CMSX-3, Harris argues CMSX®-486 can be produced at considerable cost savings as compared with single crystal castings of CMSX-3 because of fewer rejectable grain defects. The 32-43% increase in stress-rupture life, however, does not represent a “difference in kind” that is required to show unexpected results. See In re Huang, 100 F.3d 135, 139 (Fed.Cir.1996) (holding that claimed ranges must “produce a new and unexpected result which is different in kind and not merely in degree from results of the prior art”). In addition, Yoshinari teaches that limiting the percentages of chromium and tantalum will improve the “hot corrosion resistance” and “high-temperature strength” of the alloy. Yoshinari, col. 8, ll. 33-37, 44-51. As these factors are related to the stress-rupture life of the alloy, substantial evidence supports the Board’s conclusion that the increase in stress-rupture life is not unexpected. The Board also correctly reasoned that the showing of unexpected results is not commensurate in scope with the degree of protection sought by the claimed" }, { "docid": "268115", "title": "", "text": "one ordinarily skilled in the art by some method which was known or was obvious in view of the cited and admitted prior art. In his brief, the solicitor argues that the claims are obvious in view of Allen, Cooper, Bird, and Sloan. OPINION It is apparent that the board based its conclusion that appellant’s claimed structure was obvious largely upon reasoning that it could be made by methods which it found suggested by Cooper and Allen and the “admissions” it found in appellant’s specification. We do not think these references and “admissions” show the structure to have been obvious, and, in particular, we do not find that the methods disclosed in Cooper and Allen would have made that structure obvious. It is true that appellant did concede that incandescent lamp filaments of tantalum and tantalum-alloy carbides are old. But that is about as far as any admissions made by him are of any significance. Certainly he did not concede that it would be obvious to weld such carbide filaments to supports of the same composition; he has instead steadfastly urged that spot welding a tantalum carbide filament to a support is not practical because the filament tends to shatter during the process. That appellant did not state such a weld was impossible, while maintaining it was difficult, plainly does not amount to the admission which the board apparently found. The desirability of making the Allen filament 38, 39 of tantalum or tantalum-alloy carbide might very will have been apparent to a person skilled in the art. However, we do not find Cooper to suggest either that both the particular filament structure, including both its coiled end 39 and support member 44, be made of such material or that they could be welded together as required by the claims. Appellant submitted an affidavit of Johansen, a highly trained scientist experienced in the development of incandescent lamps which utilized tantalum carbide filaments. The affiant states that it would be “technically impossible” to provide the claimed structure by first fabricating the filament and supports of tantalum or tantalum-alloy and then heating them" }, { "docid": "13924758", "title": "", "text": "the same four elemental metals named by appellants. It being shown in the British specification that tantalum can be etched for use as an electrode metal by appellants’ process it seems to us that it would be most obvious to one skilled in the art, in view of the teaching of Taylor, to apply the same etching process to the other known electrolytic capacitor metals or to alloys of two of those metals. Appellants’ method as originally disclosed was designed to etch a metal most resistant to corrosion and hence difficult to etch, namely tantalum, and if it would etch, tantalum one would not be surprised if it etched the others. Certainly it would be obvious to try it and mere proof that it worked would not make it patentable over the disclosure of the British specification. 85 U. S. C. 103. The decision of the board is affirmed. Appellants Rave referred to tlie British “patent” as being theirs, which is only loosely true. For the sake of accuracy, it is noted that appellants appear to have assigned their XJ. S. rights to General Electric Company whose attorneys have prosecuted the applications. The British reference bears the name of The British Thomson-Houston Company, Limited and does not name the inventors. This reference is so designated though in fact it is not relied on as a patent nor shown by the record to be such under British law. What is relied on is actually the publication of the “Complete Specification” which took place on May 13, 1953, and we shall refer to it as the “British specification.” Claims 1 and 19-22 read: 1. The method of electrolytically etching a refractory, film-forming metal selected from the group consisting of tantalum, zirconium, niobium, titanium, and alloys of tantalum and niobium, which comprises making the metal the anode in an electrolyte solution consisting essentially of from 6.5 to 99% by weight of methanol, from about 87 to 0% by weight of an organic liquid miscible with methanol and from 3,000 to 135,000 ppm. of water, and at least one methanol-soluble inorganic salt dissolved therein" } ]

[ { "docid": "22801885", "title": "", "text": "the Act’s provisions. 2 U. S. C. § 437h note (Supp. II). Eleven such actions were filed promptly after the statute went into effect in March 2002. As required by §403, those actions were filed in the District Court for the District of Columbia and heard by a three-judge court. Section 403 directed the District Court to advance the cases on the docket and to expedite their disposition “to the greatest possible extent.” The court received a voluminous record compiled by the parties and ultimately delivered a decision embodied in a two-judge per curiam opinion and three separate,. lengthy opinions, each of which contained extensive commentary on the facts and a careful analysis of the legal issues. 251 F. Supp. 2d 176 (2003). The three judges reached unanimity on certain issues but differed on many. Their judgment, entered on May 1, 2003, held some parts of BCRA unconstitutional and upheld others. 251 F. Supp. 2d 948. As authorized by § 403, all of the losing parties filed direct appeals to this Court within 10 days. 2 U. S. C. § 437h note. On June 5, 2003, we noted probable jurisdiction and ordered the parties to comply with an expedited briefing schedule and present their oral arguments at a special hearing on September 8, 2003. 539 U. S. 911. To simplify the presentation, we directed the parties challenging provisions of BCRA to proceed first on all issues, whether or not they prevailed on any issue in the District Court. Ibid. Mindful of §403’s instruction that we expedite our disposition of these appeals to the greatest extent possible, we also consider each of the issues in order. Accordingly, we first, turn our attention to Title I of BCRA. III Title I is Congress’ effort to plug the soft-money loophole. The cornerstone of Title I is new FECA ■§ 323(a), which prohibits national party committees and their agents from soliciting, receiving, directing, or spending any soft money. 2 U. S. C. § 441i(a) (Supp. II). In short, § 323(a) takes national parties out of the soft-money business. The remaining provisions of new FECA" } ]

[ { "docid": "360122", "title": "", "text": "Plaintiffs’ Objections to Defendants’ “Notice of Filing Supplemental Materials to Administrative Record” was filed September 11, 2002. Ultimately, the AR and supplements before this Court consisted of twenty-three (23) volumes, 15,950 pages. Summary Judgment Plaintiffs’ (DMTPHA) Motion for Summary Judgment was filed October 17, 2002, and Defendants’ Response to Plaintiffs’ Motion for Summary Judgment was filed December 18, 2002. On January 17, 2003, Plaintiffs filed Plaintiffs’ Reply in Support of Its Motion for Summary Judgment. Defendants’ Motion to Strike Extra-Record Declarations and Materials Attached to Plaintiffs’ Motion for Summary Judgment was filed December 18, 2002. Plaintiffs’ Response and Brief in Opposition to Defendants’ Motion to Strike Extra-Record Declarations and Materials Attached to Plaintiffs’ Motion for Summary Judgment was filed January 17, 2003. Defendants filed no reply. Plaintiffs’ Motion and Brief in Support of Motion to Strike Defendants’ Post Hoc Declarations of Bowles, Cormier, Skujins, and Fidell was filed January 17, 2003. Defendants filed no response. Defendants’ Cross-Motion for Summary Judgment was filed December 18, 2002. Plaintiffs’ Response to Defendants’ Cross Motion for Summary Judgment was untimely filed January 17, 2003. Defendants filed no reply. Oral Arguments This Court’s Order Setting Hearing to entertain oral arguments on January 29, 2003, specifically limited to (1) the appropriate baseline and (2) alternate basing, was filed January 2, 2003. III. STANDARD Ordinarily, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c). However, when reviewing the decision of an administrative agency, “a motion for summary judgment ‘stands in a somewhat unusual light, in that the administrative record provides the complete factual predicate for the court’s review.’ ” Tex.Comm. on Natural Res. v. Van Winkle, 197 F.Supp.2d 586, 595 (N.D.Tex.2002) (quoting Piedmont Envtl. Council v. United States DOT, 159 F.Supp.2d 260, 268 (W.D.Va.2001), aff'd in relevant part by 58 Fed.Appx. 20 (4th Cir.2003) (per curiam)). “Summary judgment is an appropriate procedure for resolving a challenge to a federal agency’s administrative decision when review is based upon the administrative record ..., even though" }, { "docid": "1666237", "title": "", "text": "September 10, 1998, the court denied the defendants’ motion for summary judgment on invalidity but granted the defendants’ motion for summary judgment on non-infringement, holding that the APC probes did not infringe on the '675 patent. Canady v. Erbe Elektromedizin GmbH, 20 F.Supp.2d 54 (D.D.C.1998). The plaintiffs appealed from the grant of summary judgment of non-infringement to the Federal Circuit. The Federal Circuit affirmed this court’s decision without opinion. Canady v. Erbe Elektromedizin GmbH, 194 F.3d 1335, 1999 WL 319475 (Fed.Cir.1999). Subsequently, the plaintiffs filed a Federal Rule of Civil Procedure 60(b) motion, seeking relief from the court’s grant of summary judgment. The plaintiffs alleged that the defendants wrongfully withheld documents that could have supplied a meritorious response to the defendants’ motion for summary judgment of non-infringement. On March 31, 2000, the court granted the plaintiffs’ Rule 60(b) motion, reasoning that “the information not disclosed by [the defendants] is material to the infringement issue and might have enabled [the plaintiffs] to withstand [the defendants’] motion for summary judgment of non-infringement.” Mem. Op. (dated Mar. 31, 2000) at 3. The court vacated the portion of the September 10, 1998 order that granted summary judgment of non-infringement to the defendants. Id. On June 21, 2000, the defendants requested that the Patent Trademark Office (“PTO”) reexamine the '675 patent. Mem. Op. (dated Mar. 5, 2004) at 6. The PTO granted the defendants’ request on September 12, 2000. Id. The court stayed the current litigation pending the completion of the PTO’s reexamination. Id. In the next few years, the arena for the litigation shifted to the PTO. The PTO subsequently affirmed the patentability of the claims of the '675 patent, and this court lifted the stay on May 13, 2003. Id. at 7. On August 2, 2004, after unsuccessful attempts at mediation and having faced an avalanche of motions, the court set a revised briefing schedule, ordering the plaintiffs to file an opposition to the defendants’ original summary judgment motion, “addressing only the newly discovered evidence and how that evidence affects the court’s grant of summary judgment on the defendants’ non-infringement counterclaim.” Minute Order" }, { "docid": "16527860", "title": "", "text": "ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PHILLIPS, District Judge. Plaintiffs and Defendant’s Motions for Summary Judgment came before the Court for hearing on April 19, 2004. After reviewing and considering all papers filed in support of, and in opposition to, the Motions, as well as the arguments advanced by counsel at the hearing, the Court GRANTS Defendant’s Motion for Summary Judgment and DENIES Plaintiffs Motion for Summary Judgment. I.PROCEDURAL HISTORY In October 2002, Barbara Madsen, a teacher in the Chino Valley School District, filed a discrimination claim with the Equal Employment Opportunity Commission (“EEOC”). [Declaration of Don Bridge (“Bridge Decl.”) ¶2, Exs. 8-10.] Ms. Madsen alleged that Defendant Associated Chino Teachers (“ACT”), the exclusive bargaining agent for teachers in the Chino Valley School District, discriminated against her based on her religion by requiring her to pay to a charity the equivalent of the full union dues. [Id. Ex. 10.] The EEOC issued a “right-to-sue” letter on November 7, 2002. On April 24, 2003, Ms. Madsen filed suit in California Superior Court against ACT. In her Complaint, Ms. Madsen alleged the following claims: (1) violation of the California Fair Employment and Housing Act (Cal. Gov.Code § 12940(b)), (2) violation of Title VII § 703 of the 1964 Civil Rights Acts (42 U.S.C. § 2000e-2(c)); (3) violation of equal protection under the Fourteenth Amendment to the United States Constitution, and (4) violation of the Establishment Clause of the First Amendment to the United States Constitution and of the “No Preference” Clause of the California Constitution. The case was removed on June 9, 2003. On February 26, 2004, Defendant filed a Motion for Summary Judgment (“Def.Mot.”). On February 27, 2004, Plaintiff filed a Motion for Summary Judgment (“Pl.Mot.”). On March 12, 2004, each party filed opposition briefs (“PI. Opp’n” and “Def. Opp’n”). On March 19, 2004, each party filed reply briefs (“PI. Reply” and “Def. Reply”). II.LEGAL STANDARD A motion for summary judgment shall be granted when “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment" }, { "docid": "12511383", "title": "", "text": "and (3) Petitioner’s trial counsel provided ineffective assistance in connection with the plea and the motion to withdraw, and also in failing to appeal. Respondent filed a Motion to Dismiss on February 4, 2000, arguing that the doctrine of procedural default barred Petitioner’s claims. Petitioner filed Opposition to the Motion to Dismiss on February 16, 2000. On April 4, 2000, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the Petition with prejudice on the ground of procedural default. On May 30, 2000, the District Court issued an order adopting the Report and Recommendation. The Court entered Judgment on June 5, 2000. The Ninth Circuit Court of Appeals affirmed in part, reversed in part, and remanded. See Bennett v. Mueller, 322 F.3d 573 (9th Cir.), cert. denied, 540 U.S. 938, 124 S.Ct. 105, 157 L.Ed.2d 251 (2003) (“Bennett\"). On October 30, 2003, the mandate of the Court of Appeals was filed and spread on the records of this Court. On March 15, 2004, the Court ordered supplemental briefing. Because Petitioner failed to file a timely supplemental brief, on April 29, 2004, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the Petition without prejudice for failure to prosecute. On June 2, 2004, Petitioner filed a “Motion for Reconsideration, etc.” On June 4, 2004, the Magistrate Judge withdrew the April 29, 2004 Report and Recommendation and again ordered supplemental briefing. On June 28, 2004, Petitioner filed a Supplemental Brief (“Pet.Supp.Brief”). On September 2, 2004, Respondent filed a Supplemental Brief (“Resp.Supp.Brief”), accompanied by lodged documents. On September 16, 2004, Petitioner filed a Reply. On September 17, 2004, Petitioner filed a Request for Judicial Notice, accompanied by exhibits. DISCUSSION I. General Law of Procedural Default A federal court may be barred from reviewing the merits of a habeas petitioner’s claim when the petitioner has defaulted with respect to particular state law procedural requirements. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “For the procedural default rule to apply, however, the application of the state procedural rule must provide ‘an adequate and independent state" }, { "docid": "19109086", "title": "", "text": "MEMORANDUM OPINION REGGIE B. WALTON, District Judge. N.Y.C. Apparel F.Z.E. initiated this civil lawsuit on December 3, 2004, seeking to compel the disclosure of certain records requested from the United States Customs and Border Protection Bureau pursuant to the Freedom of Information Act, 5 U.S.C. §§ 552-552b (2000) (the “FOIA”). Currently before the Court is the Plaintiffs Motion for an Award of Attorney Fees (the “PL’s Mot.”), in which the plaintiff requests attorney’s fees in the amount of $21,722.50. After carefully considering the plaintiffs motion, the defendant’s opposition (the “Def.’s Opp’n”), and the plaintiffs reply memorandum in support of its motion (the “PL’s Reply”), the Court concludes that the motion must be denied for the reasons that follow. I. Background The Court has previously described the facts underlying this case in some detail in separate memorandum opinions, see generally NYC Apparel FZE v. U.S. Customs and Border Prot., No. Civ. A. 04-2105(RBW), 2006 WL 167833 (D.D.C. Jan. 23, 2006) (“NYC Apparel /”) (resolving cross-motions for summary judgment filed by the parties); NYC Apparel FZE v. U.S. Customs and Border Prot., 484 F.Supp.2d 77 (D.D.C.2007) (“NYC Apparel II”) (resolving renewed cross-motions filed by the parties), and therefore need only briefly describe them here. In summary, the plaintiff, an exporter of merchandise from the United Arab Emirates, claims that the defendant seized two of its containers at the Los Angeles-Long Beach Seaport on July 9, 2003, and July 12, 2003, which led the plaintiff to submit a FOIA request on September 3, 2003, for all information relating to those searches. NYC Apparel II, 484 F.Supp.2d at 82. When the defendant refused to disclose eighty-four pages of documents that were responsive to the plaintiffs request on the ground that the documents were exempt from disclosure under the FOIA, the plaintiff first appealed that determination to the defendant’s FOIA Appeals Officer and, after receiving no determination from the FOIA Appeals Officer, filed its complaint in this Court on December 3, 2004. Id. at 82-83. After this action was initiated, the FOIA Appeals Officer (the “Appeals Officer”) issued her decision in a letter dated February" }, { "docid": "16733719", "title": "", "text": "date, as opposed to one year before the effective date, the only thing that changes is that all three layers of the federal judiciary will be able to reach considered merits decisions, as opposed to rushed interim (e.g., stay) decisions, before the law takes effect. The former is certainly preferable to the latter, at least in the current setting of this case. Nor is their claim insufficiently “concrete and particularized.” Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130. While “ ‘some day’ intentions” to travel somewhere or to do something that might implicate a federal law “do not support a finding of the ‘actual or imminent’ injury” that the cases demand, id. at 564,112 S.Ct. 2130, plaintiffs’ situations are not nearly so ephemeral. There is no trip that must be taken, no ticket that must be purchased, before the injury occurs. See id. at 564 n. 2, 112 S.Ct. 2130. The plaintiffs claim a constitutional right to be free of the minimum coverage provision, and the only thing saving them from it at this point is two and a half more years and an exceedingly concrete “some day”: January 1, 2014. See 26 U.S.C. § 5000A(a). McConnell v. Federal Election Commission, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), does not undermine this conclusion. There the Court ruled that several plaintiffs did not have standing to challenge a provision of the Bipartisan Campaign Reform Act because their “alleged injury ... [was] too remote temporally.” Id. at 226, 124 S.Ct. 619. The McConnell plaintiffs filed a lawsuit in March 2002, 251 F.Supp.2d 176, 206 (D.D.C.2003), and “the earliest day [McConnell] could be affected by [the challenged provision was] 45 days before the Republican primary in 2008.” 540 U.S. at 226, 124 S.Ct. 619. The Court, however, could not know whether the plaintiffs would even suffer an injury six years later. Id. The challenged provision would affect the McConnell plaintiffs only if the following things happened in an election six years later: (1) a challenger ran in the primary or election; (2) the plaintiff created an advertisement mentioning" }, { "docid": "1666238", "title": "", "text": "2000) at 3. The court vacated the portion of the September 10, 1998 order that granted summary judgment of non-infringement to the defendants. Id. On June 21, 2000, the defendants requested that the Patent Trademark Office (“PTO”) reexamine the '675 patent. Mem. Op. (dated Mar. 5, 2004) at 6. The PTO granted the defendants’ request on September 12, 2000. Id. The court stayed the current litigation pending the completion of the PTO’s reexamination. Id. In the next few years, the arena for the litigation shifted to the PTO. The PTO subsequently affirmed the patentability of the claims of the '675 patent, and this court lifted the stay on May 13, 2003. Id. at 7. On August 2, 2004, after unsuccessful attempts at mediation and having faced an avalanche of motions, the court set a revised briefing schedule, ordering the plaintiffs to file an opposition to the defendants’ original summary judgment motion, “addressing only the newly discovered evidence and how that evidence affects the court’s grant of summary judgment on the defendants’ non-infringement counterclaim.” Minute Order (dated Aug. 2, 2004). The court permitted the defendants to file a reply to the plaintiffs’ opposition, “addressing only the matters raised in their original summary judgment motion and the plaintiffs’ opposition.” Id. The parties have now fully briefed the defendants’ renewed motion for summary judgment. But unfortunately, the battle does not end there. On September 28, 2004, the plaintiffs filed a motion for leave to file a motion to strike two exhibits to the defendants’ reply: the declarations of Karl Grund and Jerome Waye. Again, the parties fully briefed the plaintiffs’ motion to file a motion to strike the Grund and Waye declarations. The court now addresses the plaintiffs’ motion to strike and the defendants’ renewed motion for summary judgment in turn. III. ANALYSIS A. The Plaintiffs’ Motion to Strike 1. Legal Standard for Motion to Strike Under Rule 56 The decision to grant or deny a motion to strike is vested in the trial judge’s sound discretion. Collazos-Cruz v. United States, 1997 WL 377037 at *2 (6th Cir. July 3, 1997) (citing Whitted" }, { "docid": "8697314", "title": "", "text": "17, 2003, the Debt- or moved to dismiss Plaintiffs first claim for relief regarding revocation of the Confirmation Order pursuant to Rule 12(b) of the Federal Rules of Civil Procedure (hereinafter each rule entitled “Rule”), made applicable to this adversary proceeding by Bankruptcy Rule 7012(b). However, the Debtor stated in its motion that it supports Plaintiffs second claim for relief seeking a declaratory judgment because it provides an alternative mechanism to address Plaintiffs primary concern herein, which is the continued viability of his Section 16(b) Action against Defendants. The following day, Defendants filed a motion to dismiss the Complaint in its entirety pursuant to Rules 8(a), 9(b), and 12(b)(6). In turn, on October 4, 2003, Plaintiff filed opposition briefs to the Debtor’s and Defendants respective motions to dismiss and, on December 1, 2003, Plaintiff filed a motion for partial summary judgment and statement of material facts with regard to the second claim pursuant to Rule 56, made applicable to this adversary proceeding by Bankruptcy Rule 7056. The Debtor and Defendants filed reply briefs in further support of their respective motions to dismiss on December 19, 2003 and, on the same day, Defendants filed an opposition brief to Plaintiffs motion for partial judgment and response to Plaintiffs statement of material facts. On January 21, 2004, Plaintiff filed a reply brief in further support of his motion for partial judgment. A hearing was held regarding said motions on February 4, 2004. On September 30, 2004, this Court issued a memorandum decision denying Plaintiffs first claim for relief, where it found that (1) the request for revoking the Confirmation Order pursuant to Bankruptcy Code section 1144 was rendered moot because the Stand-Alone Plan was substantially consummated as of the Effective Date and it was virtually impossible to unwind the transactions related to such substantial consummation at the time Plaintiff brought this adversary proceeding approximately four months after the Effective Date, and (2) since many third parties had taken possession of the reorganized Debtor’s debt and equity securities post-confirmation, including those who purchased securities on the open market after the distribution was made, it" }, { "docid": "8982307", "title": "", "text": "motion for partial summary judgment with respect to damages. On August 15, 2003, this case was assigned from the Honorable Loren Smith to the undersigned judge. On October 31, 2003, the court issued a memorandum opinion and order entering a judgment granting plaintiffs’ October 10, 2000 motion as to liability. See American Capital I, 58 Fed.Cl. at 406-09. On November 17, 2003, the Government filed a motion for reconsideration. On December 19, 2003, plaintiffs filed a response, together with three additional exhibits. On January 23, 2004, defendant filed a reply. On December 16, 2003, the court held oral argument on the plaintiffs’ August 31, 2001 motion for partial summary judgment as to damages, in which the Government and FDIC participated. On January 13, 2004, the court issued an order allowing the parties and the FDIC the opportunity to address several issues that the parties requested to brief further and/or arose during the oral argument. On February 13, 2004, the par ties and the FDIC filed post-hearing memo-randa. On January 5, 2004, the Government filed a cross-motion for summary judgment upon plaintiffs’ claims for restitution, together with a Statement of Genuine Facts In Support Thereof. On February 2, 2004, Plaintiffs filed an opposition, together with two additional exhibit documents on that same date. On February 2, 2004, the FDIC also filed an opposition. On February 17, 2004, the Government filed a reply. The substantive bases for the cross-motion was presented by the Government at the December 16, 2003 oral argument. See Dee. 16, 2003 Transcript at 63-89. This memorandum opinion first will address the merits of the plaintiffs’ August 31, 2001 motion for partial summary judgment as to damages, including the Government’s January 5, 2004 cross-motion regarding restitution. The court then will address issues concerning the FDIC’s standing and the court’s scheduling of a final evidentiary hearing on damages. DISCUSSION A. Jurisdiction. The United States Court of Federal Claims is authorized under the Tucker Act, 28 U.S.C. § 1491(a)(1) (2000), to render judgment and money damages on any claim against the United States based on the United States Constitution, an Act" }, { "docid": "5269763", "title": "", "text": "Clinic Chief. Id. ¶ 85. DOH officials have not required that Dr. Sankar perform all of the duties in his job description as Clinic Chief, as they required of the plaintiff. Id. ¶ 88. Rather, Dr. Sankar has required the plaintiff to perform some duties included in his job description, and not included in her job description as a medical officer. Id. ¶ 90. The plaintiff also alleges that Dr. Sankar has denied her the legitimate use of sick days, id. ¶ 192, and ridiculed her for taking some sick days, id., after he learned she had filed a complaint with the D.C. Office of Human Rights (“OHR”), see PL’s Opp’n, Ex. B. The plaintiff alleges that these actions constitute a district “policy or custom,” set intentionally or as a result of deliberate indifference of discriminatory treatment of women, and discriminatory treatment against her because of her illnesses. Am. Compl. ¶¶ 96-97. B. Procedural History The plaintiff filed her complaint on July 31, 2002. In June 2003, the court denied the defendant’s motion to stay the proceedings. Turner v. District of Columbia, 268 F.Supp.2d 23 (D.D.C.2003). The district filed a motion to dismiss, or in the alternative, for summary judgment, on September 4, 2003, which the plaintiff filed an opposition to on October 21, 2003. The defendant filed a reply ten days later. In July, 2004, the court ordered the parties to submit further briefing on why the plaintiffs claim against the district under § 1983 should not be dismissed where that claim failed to allege that “execution of ... official policy or custom is responsible for the deprivation of constitutional rights.” July 28, 2004 Order (citing Morgan v. District of Columbia, 824 F.2d 1049, 1058 (D.C.Cir.1987)). Following the submission of further briefing by both parties, the court granted the plaintiff leave to amend her complaint to correct her allegations, and the plaintiff filed her amended complaint on November 1, 2004. The defendant filed its motion to dismiss or in the alternative for summary judgment currently before the court on January 7, 2005. The court now turns to that motion." }, { "docid": "11834018", "title": "", "text": "for their respective positions. See Pis.’ Opp. at 3-4; see also Am. Compl. ¶¶ 29-31. Mr. Coghlan filed suit in this Court on July 27, 2005. The original complaint asserted ADEA claims on behalf of Mr. Coghlan and all similarly situated FAA employees based on allegedly discriminatory pay setting decisions the FAA made in 2004. An amended complaint was filed on December 20, 2005. The amended complaint added Mr. O’Hara as a class representative and asserted claims on behalf of all similarly situated FAA employees based on allegedly discriminatory pay setting decisions the FAA made in 2005. On January 23, 2006, defendant moved to dismiss or, in the alternative, for summary judgment. On March 29, 2007, this Court issued an Order denying defendant’s motion. On May 29, 2007, the Supreme Court issued its decision in Ledbetter v. Goodyear Tire & Rubber Co., — U.S. -, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007). Because that decision addressed the timeliness of administrative complaints of pay discrimination — an issue crucial to this case — the Court vacated its Order denying defendant’s motion, and ordered the parties to submit supplemental briefs addressing “whether, in view of the Supreme Court’s decision in Ledbetter, plaintiffs’ ADEA pay discrimination claim is untimely.” Coghlan v. Peters, Civil Action No. 05-1476, Order Vacating March 29, 2007 Order (D.D.C. May 30, 2007). The parties filed those briefs, the Court decided the matter by Order of March 31, 2008, and the Court now explains that decision. II. GOVERNING LAW “The ADEA broadly bars age discrimination in employment. And it provides a federal government employee two alternative avenues to judicial redress.” Rann v. Chao, 346 F.3d 192, 195 (D.C.Cir.2003), cert. denied, 543 U.S. 809, 125 S.Ct. 35, 160 L.Ed.2d 11 (2004). First, pursuant to 29 U.S.C. §§ 633a(c) and 633a(d), an employee may bring his claim directly to federal court “so long as, within 180 days of the allegedly discriminatory act, he provides the [Equal Employment Opportunity Commission] with notice of his intent to sue at least 30 days before commencing suit.” Id. Second, pursuant to 29 U.S.C. §§ 633a(b) and" }, { "docid": "16231397", "title": "", "text": "a “Loss Fund” to assure that there were sufficient funds to cover the anticipated workers’ compensation claims for the succeeding 90 days. The Debtor also agreed to pay in advance any individual workers’ compensation claim which exceeded $25,000. Quarterly audits were conducted, after which the Defendant would either refund any excess amounts or bill the Debtor for the shortfall. The Defendant received a monthly service fee (“the Service Fee”) and reim bursement of its expenses for the services it performed for the Debtor. On January 17, 2003, the Plaintiff filed a Complaint against the Defendant to recover alleged preferential transfers. The transfers at issue include two payments to replenish the Loss Fund totaling $47,921.61 and three Service Fees of $1,599.42 each. The Defendant answered the Complaint on February 19, 2003. On September 8, 2004, the Plaintiff filed its Motion for Summary Judgment. The Defendant filed its Reply and Cross Motion for Summary Judgment on October 8, 2004. Briefing is complete and this matter is ripe for decision. II. JURISDICTION This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 157(b)(2)(F). III. DISCUSSION A. Timeliness The Plaintiff contends that the Defendant’s Cross Motion should be denied because it is untimely. It argues that this Court set a deadline of September 10, 2004, for all dispositive motions to be filed. The Defendant filed its Cross Motion on October 8, 2004, which the Plaintiff contends is 28 days late. The Scheduling Order, however, provides that responses to dispositive motions are to be filed within 30 days. A party may include a cross motion for summary judgment in a response. E.g., Ellenberg v. Tulip Prod. Polymerics, Inc. (In re T.B. Home Sewing Enters., Inc.), 173 B.R. 782, 785 (Bankr.N.D.Ga.1993) (finding that filing of response to motion for summary judgment and cross motion for summary judgment was appropriate); Fed.R.Civ.P. 12(b) & 56(b). The Defendant’s cross motion was filed within 30 days of the Plaintiffs motion and is, therefore, timely; Therefore, the Court will not dismiss the Defendant’s Motion as untimely but will consider it on the merits. B. Standard for Summary Judgment" }, { "docid": "9451337", "title": "", "text": "MEMORANDUM OPINION PER CURIAM. Presently before the Court are a number of motions to stay all or part of this Court’s May 1, 2003, Final Judgment. On May 7, 2003, the NRA Plaintiffs moved, pursuant to Federal Rule of Civil Procedure 62(c), to stay this Court’s decision with respect to Title II pending review by the Supreme Court. NRA Mem. at 1. On May 8, 2003, this Court issued an Order requiring that any other motions requesting to stay all or part of this Court’s May 1, 2003, Final Judgment Order bé filed by noon on Friday, May 9, 2003. McConnell v. FEC, No. 02cv582 (D.D.C. May 8, 2003) (briefing order). The Court also required that any and all oppositions to the motions for stay be filed by noon on Monday, May 12, 2003, and that any and all replies to the motions for stay be filed by noon on Wednesday, May 14, 2003. Id. In accordance with that schedule, on May 9, 2003, Plaintiff ACLU filed a stay motion joining Plaintiff NRA’s request to stay this Court’s decision with respect to Title II. ACLU Mot. at 3. The NRA and ACLU stay motions have been opposed by the Madison Center Plaintiffs, who along with the AFL-CIO Plaintiffs have each moved for injunctive relief requesting that the Court not restore any definition of “electioneering communication.” Madison Center Mem. at 1; AFL-CIO Mem at 2. The Madison Center Plaintiffs and the AFL-CIO Plaintiffs’ motions have been opposed by the Government Defendants and Intervenor Defendants. The Government Defendants and Inter-venor-Defendants also move pursuant to Rule 62(c) to stay the Court’s entire Final Judgment pending disposition of the parties’ appeals to the Supreme Court of the United States. Gov’t Mem. at 4; Intervenor Defs.’ Mem. at 1. These motions are opposed by certain of the McConnell Plaintiffs, who argue that the Court’s Final Judgment with respect to Sections 201(5), 213, 318, and 504 of the Bipartisan Campaign Reform Act (“BCRA”), the positions unanimously struck down by the three judge court, should not be stayed. McConnell Opp’n at 3. These McConnell Plaintiffs also contend" }, { "docid": "2830852", "title": "", "text": "paid reclamation fees on coal which was sold to foreign customers. On April 27, 2001, Consolidation Coal Company brought suit in this court alleging that the reclamation fee violated the Takings Clause and the Export Clause. Rapoca Energy Company filed its complaint on July 31, 2001, relying upon the same constitutional provisions as Consolidation Coal Company. The two cases were consolidated on November 6, 2001. Following extensive briefing, the court dismissed plaintiffs’ complaint on August 14, 2002, for lack of subject matter jurisdiction. The court first reasoned that plaintiffs’ constitutional claims were subject to statute of limitations constraints. Consolidation Coal Co., et al. v. United States, 54 Fed.Cl. 14, 17 (2002). Next, relying on Amerikohl Mining, Inc. v. United States, 899 F.2d 1210 (Fed.Cir. 1990) and 30 U.S.C. § 1276(a)(1), the court concluded that jurisdiction over plaintiffs’ challenge rested exclusively with the United States District Court for the District of Columbia (D.C. District Court) because plaintiffs were challenging the substance of the regulations. Consolidation Coal, 54 Fed.Cl. at 19. Plaintiffs appealed the court’s decision to the Federal Circuit. On December 11, 2003, the Federal Circuit held that the Export Clause provided an independent self-executing cause of action within the court’s jurisdiction and that Congress did not unambiguously withdraw Tucker Act jurisdiction in 30 U.S.C. § 1276(a)(1). Consolidation Coal Co., et al. v. United States, 351 F.3d 1374, 1376-77 (Fed.Cir.2003). The case was, therefore, remanded to the court for further proceedings. On May 21, 2004, plaintiffs filed their Motion For Summary Judgment. On July 9, 2004, defendant responded by opposing plain tiffs’ motion and by renewing its motion to dismiss for failure to state a claim upon which relief can be granted. Plaintiffs filed their response and reply on September 17, 2004. Subsequently, on September 30, 2004, plaintiffs filed a supplemental brief discussing proposed new rules pertaining to the reclamation fee. Defendant replied on December 2, 2004. The court heard oral argument on February 14, 2005. Discussion Plaintiffs have moved for summary judgment contending that there are no genuine issues of material fact and the moving party is entitled to judgment" }, { "docid": "9491561", "title": "", "text": "MEMORANDUM OPINION STARK, United States Magistrate Judge. I. INTRODUCTION Plaintiff Myrna L. Gonzalez (“Gonzalez”) appeals from a decision of Defendant Michael J. Astrue, the Commissioner of Social Security (“Commissioner”), denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-33. The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). Presently pending before the Court are cross-motions for summary judgment filed by Gonzalez and the Commissioner. (D.I.17,19) Gonzalez’s motion for summary judgment asks the Court to award her DIB. (D.I.17) The Commissioner’s cross-motion for summary judgment requests that the Court affirm his decision and enter judgment in his favor. (D.I.19) For the reasons set forth below, Gonzalez’s motion for summary judgment will be granted in part and denied in part, and the Commissioner’s cross-motion for summary judgment will be denied. This matter will be remanded for further proceedings. II. BACKGROUND A. Procedural History Gonzalez filed the application for DIB at issue in this case on September 11, 2002. See Transcript (hereinafter “Tr.”) at 20, 116. That application was denied initially on December 23, 2002 and again denied on reconsideration on October 14, 2003. Tr. at 77-81, 83-87. After a requested hearing, an administrative law judge (ALJ) issued a decision on November 24, 2004 denying benefits. Tr. at 17-30, 90. On June 10, 2005. the Appeals Council denied Gonzalez’s request for review. Tr. at 10-13. On December 20, 2005, the Appeals Council set aside its earlier action and considered additional information that had been supplied. Tr. at 5-9. On that earlier action and considered additional information that had been supplied. Tr. at 5-9. On that same date, however, the Appeals Council denied the request for review. Tr. at 5. Thus, the ALJ’s November 24, 2004 adverse decision became the final decision of the Commissioner. See id.; see also 20 C.F.R. §§ 404.955, 404.981; Sims v. Apfel, 530 U.S. 103, 107, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). On February 3, 2006, Gonzalez filed a Complaint seeking judicial review of the ALJ’s November 24, 2004 decision. (D.I.2) On November 8," }, { "docid": "10005544", "title": "", "text": "Opinion for the Court filed by Circuit Judge TATEL. Dissenting opinion filed by Circuit Judge HENDERSON. TATEL, Circuit Judge. A landmark reform to the nation’s campaign finance laws, the Bipartisan Campaign Finance Reform Act of 2002, Pub.L. No. 107-155, 116 Stat. 81, took aim at two perceived demons of federal electoral contests: “soft money,” i.e., use of unregulated political party activities to influence federal elections, and “sham issue ads,” i.e., ostensibly issue-related advocacy functioning in practice as unregulated campaign advertising. These two tactics, given broad scope by permissive Federal Election Commission rulings, infused federal campaigns with , hundreds of millions of dollars in federally unregulated funds, much of it contributed by corporations and labor unions. Now BCRA’s House sponsors (joined by Senate sponsors as amici) claim the FEC has undone their hard work, resurrecting in its regulations practices BCRA eradicated and thus forcing them to seek reelection in illegally constituted electoral contests. Considering this facial challenge to the regulations, the district court invalidated some fifteen rules, finding some inconsistent with the statute and others arbitrary and capricious. The FEC appeals regarding five key rules: standards for “coordinated communication,” definitions of the terms “solicit” and “direct,” the interpretation of “electioneering communication,” allocation rules for staté party employee salaries, and a de minimis exemption from allocation rules governing certain contributions, known as “Levin funds,” to state and local parties. We affirm in all respects. I. Needless to say, federal campaign finance law is complex, and BCRA is no exception. Though few of its details are important to this litigation (and those that are we describe later in our analysis), we here provide a brief overview of the statute’s background and objectives. ' As the Supreme Court explained in McConnell v. FEC, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), which upheld BCRA’s core provisions against constitutional challenge, “BCRA is the most recent federal enactment designed ‘to purge national politics of what was conceived to be the pernicious influence of “big money” campaign contributions.’ ” Id. at 115, 124 S.Ct. 619 (quoting United States v. Auto. Workers, 352 U.S. 567, 572," }, { "docid": "22469470", "title": "", "text": "and denied all pending motions as moot. The district court amended its order on November 29, 2006, though the record does not indicate a reason for the amended order and review of both orders reveals no substantive alterations. In its grant of the summary judgment motion, the court noted that Smith had not filed a response to the motion, but that the case management and scheduling order provided him with adequate notice of his obligations regarding a summary judgment motion and that he had “sporadic legal assistance in this case.” Smith filed a notice of appeal as to the district court’s November 21 order granting the School Board’s motion for summary judgment and the court’s November 29 amended order. II. Analysis A. Magistrate Judge’s Orders In his appellate brief, Smith requests reversal of four of the magistrate’s orders, which were entered on the following dates: (1) November 28, 2005; (2) May 12, 2006; (3) June 19, 2006; and (4) September 15, 2006. In that regard, Smith argues that the magistrate erred in denying his various motions to compel depositions, require the School Board to respond to his request for admissions and interrogatories, and allow him to secure “intermittent” counsel. We review a district court’s discovery rulings for abuse of discretion. Maynard v. Bd. of Regents, 342 F.3d 1281, 1286 (11th Cir.2003). We also review a district court’s decision not to appoint counsel for abuse of discretion. United States v. Berger, 375 F.3d 1223, 1226 (11th Cir.2004). The orders at issue here were all entered by the magistrate judge. According to Federal Rule of Civil Procedure 72: A magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred to hear and determine shall promptly conduct such proceedings as are required and when appropriate enter into the record a written order setting forth the disposition of the matter. Within 10 days after being served with a copy of the magistrate judge’s order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in" }, { "docid": "6747952", "title": "", "text": "party to this suit. On February 3, 2003, Defendants removed this case from Wayne County, Michigan Circuit Court to this Court. On March 13, 2003, Defendants EquiCredit, Fairbanks, and LSC filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On November 24, 2003 the Court granted Defendants’ Partial Motion to Dismiss. The following-counts remain: Count VI (Home Ownership and Equity Protection Act 15 U.S.C. § § 1602 and 1939) as to EquiCredit; Count IX (Breach of Contract) as to EquiCredit and Fairbanks; Count X (Fraud and Misrepresentation) as to EquiCredit and First Discount; and Count XI (Intentional Infliction of Emotional Distress) as to EquiCredit, First Discount, Fairbanks, and LSC. On July 19, 2004 Defendants EquiCre-dit, Fairbanks and LSC filed a Motion for Summary Judgment on the remaining counts. Defendant First Discount also filed a Motion for Summary Judgment on remaining counts. First Discount filed a Concurrence with the Court on July 29, 2004 stating that it adopts Defendants EquiCredit, Fairbanks and LSC’s facts and arguments into its brief. The Plaintiffs filed a Response to the Motions on October 26, 2004. Plaintiffs’ Response was filed more than two months after it was due, just one day before oral argument, and was stricken from the record by the Court. Oral argument was held October 27, 2004. At oral argument, Plaintiffs were allowed to fully present their response orally, and the Court has included that presentation in reaching the instant decision. ANALYSIS A. Standard for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim, or cross-claim is asserted may “at any time, move with or without supporting affidavits, for a summary judgment in the party’s favor as to all or any part thereof.” Fed.R.Civ.P. 56(b). Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the nonmoving party’s case on which the non-moving party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91" }, { "docid": "8982306", "title": "", "text": "20-26. In addition, plaintiffs’ motion seeks summary judgment as to a $42, million capital “infusion” made on December 31, 1986, shortly after the closing of the Citizens/Dollar acquisition, as “reliance damages.” Id. at 27; see also id. at 27-31. On August 31, 2001, plaintiffs filed an appendix of exhibits in support of their motion. See Pl.App. on Damages at 466-696. On that date, plaintiffs also filed Proposed Findings of Uncontroverted Facts, which incorporated by reference plaintiffs’ Proposed Findings of Uncontroverted Facts, submitted with plaintiffs’ October 10, 2000 motion for partial summary judgment as to liability. On November 30, 2001, the Government filed a response. See Def. Resp. On November 30, 2001, the Government also submitted two volumes of appendices. See Def.App. on Damages 1-498. In addition, on that date, the Government filed a Statement of Genuine Issues, incorporating by reference the Government’s December 18, 2000 Statement of Genuine Issues, submitted with its opposition to plaintiffs’ motion for partial summary judgment concerning liability. On February 15, 2002, plaintiffs filed a “Combined Reply” in support of their motion for partial summary judgment with respect to damages. On August 15, 2003, this case was assigned from the Honorable Loren Smith to the undersigned judge. On October 31, 2003, the court issued a memorandum opinion and order entering a judgment granting plaintiffs’ October 10, 2000 motion as to liability. See American Capital I, 58 Fed.Cl. at 406-09. On November 17, 2003, the Government filed a motion for reconsideration. On December 19, 2003, plaintiffs filed a response, together with three additional exhibits. On January 23, 2004, defendant filed a reply. On December 16, 2003, the court held oral argument on the plaintiffs’ August 31, 2001 motion for partial summary judgment as to damages, in which the Government and FDIC participated. On January 13, 2004, the court issued an order allowing the parties and the FDIC the opportunity to address several issues that the parties requested to brief further and/or arose during the oral argument. On February 13, 2004, the par ties and the FDIC filed post-hearing memo-randa. On January 5, 2004, the Government filed a" }, { "docid": "14802994", "title": "", "text": "Id. As already noted, plaintiffs have not rebutted the presumption of regularity for the administrative records in this case. Therefore, the Secretary need not provide a privilege log, or produce any privileged materials for this Court’s in camera review. C. MOTION TO STAY Plaintiffs also move to stay briefing of the parties’ cross-motions for summary judgment. (See Mot. at 43; Pis.’ Mot. to Stay the Briefing on the Parties’ Cross-Mots. for Summ. J., May 22, 2013 [Dkt. No. 98].) On July 24, 2013, the parties completed their briefing on the cross-motions for summary judgment in this case. The Court therefore denies plaintiffs’ motion to stay as moot. CONCLUSION For the foregoing reasons, the Court grants plaintiffs’ motion to compel [Dkt. No. 97] is in part. The Secretary shall supplement the FFY 2004 administrative record for her outlier threshold determination with: (1) the FAH Comment [Dkt. No. 97-1] and (2) February 13, 2003 Outlier Correction Interim Final Rule [Dkt. No. 84-4] by September 30, 2013; and plaintiffs’ motion to stay the briefing of cross-motions for summary judgment [Dkt. No. 98] is denied as moot. The parties shall contact chambers on October 2, 2013, at 3:30 p.m. to discuss further proceedings. . This is not to say parties must discuss every detail of a forthcoming non-dispositive motion during a Rule 7(m) conference, but rather that the issues discussed must fairly encompass all issues ultimately raised in the motion, such that the parties have a genuine opportunity to resolve or narrow the issues brought to the court. . The Court, however, does not deny plaintiffs’ request for a privilege log on this ground. In its September 10, 2013 Memorandum Opinion, the Court withheld judgment on the merits of plaintiffs’ request for a privilege log until its consideration of the motion to compel. (See 9/10/13 Mem. Op. and Order [Dkt. No. 111] at 11-12 & n. 4.) In accordance with that decision, the Court will consider plaintiffs' request for a privilege log on the merits, despite plaintiffs’ failure to comply with Local Civil 7(m). See infra at 32-33. The Court also notes that even" } ]

[ { "docid": "22930340", "title": "", "text": "whether heard firsthand or through mechanical or electronic transmission or recording,” can be established “by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.” Carbone argues that the opinion referred to must be that of a witness and not that of the trier of the fact, and the Notes of the Advisory Committee suggest that this is so, as does Judge Weinstein, 5 Weinstein’s Evidence, supra, ¶¶ 901(b)(5)[01], [02], However, subsection (b)(5) is only an illustration and several of the other illustrations do not require opinion testimony and leave it to the jury to make its own comparison. Sub section (b)(3), for example, states that authentication of a writing may be established by “[c]omparison by the trier of fact ... with specimens which have been authenticated.” Similarly, subsection (b)(4) permits a finding of authenticity based on “distinctive characteristics, taken in conjunction with circumstances.” See F.R.E. 901(b)(3), (4), Notes of Advisory Committee; see, e.g., Bagaric, supra, 706 F.2d at 67 (letter authenticated based on contents and location at which it was found). We thus see no reason in principle why, in a case like this, where the person whose voice on a tape is to be identified has testified, the jury cannot itself make the comparison. Had the judge put this question to them, that would end this matter. Cf United States v. Rizzo, 492 F.2d 443, 448 (2d Cir.) (rejecting challenge to authentication because the “jury was properly instructed” that the Government had to prove that voice on tape was defendant’s), cert. denied, 417 U.S. 944, 94 S.Ct. 3069, 41 L.Ed.2d 665 (1974); United States v. Cambindo Valencia, 609 F.2d 603, 640 (2d Cir. 1979) (jury was instructed that it must judge worth of testimony of witness who heard a voice exemplar in determining if tape was authenticated), cert. denied sub nom. Prado v. United States, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980). Here, moreover, the Government’s case was aided by Carbone’s identification of the “Bill” referred to on the tape as Foster and of the other voice as" } ]

[ { "docid": "23041977", "title": "", "text": "the absence of material alterations, and (4) the identification of relevant sounds or voices. Id.; United States v. Stone, 960 F.2d 426, 436 (5th Cir.1992). Although compliance with the Biggins requirements is the “preferred method” of proceeding, strict compliance is not required. See Biggins, 551 F.2d at 67 (“[The district court’s] discretion is not to be sacrificed to a formalistic adherence to the standard we establish.”). The district court may admit the recording in the absence of these requirements if, upon independent examination, the district court is convinced that “the recording accurately reproduces the auditory experience.” Stone, 960 F.2d at 436 (citation omitted). The recording in question includes two conversations in which an undercover officer discusses purchasing cocaine with Diana Buchanan. At the conclusion of each conversation, another voice indicates the date and time of the conversations. Testimony established that both officers present during the recording (an undercover officer who attempted to negotiate the drug purchase and the officer who indicated the time and date of the conversations) could hear the conversations as they occurred. The officer who gave the time and date of the conversations testified that he had reviewed the tape being offered and could confirm that the tape was indeed the one that he and the undercover officer had made, and that the recording accurately represented the conversations as they occurred. Further, this officer testified that after speaking with Diana Buchanan during her arrest, he was “convinced” that the voice on the tape was Diana Buchanan’s. Although the district court did not elicit testimony as to all the Biggins elements, the officer sponsoring the recording gave adequate testimony to support the recording’s reliability. All the voices were identified, and there was no intimation that the tape had been altered. Further, the testifying officer explained how the recording was made, and testified as to its accuracy. Accordingly, we cannot say that the district court abused its discretion in admitting the tape as an accurate reproduction of relevant conversations. See United States v. Lance, 853 F.2d 1177, 1181-82 (5th Cir.1988) (holding recordings properly authenticated where “law enforcement agents who" }, { "docid": "23631516", "title": "", "text": "more prejudicial than probative, see Fed.R.Evid. 403, because Dr. Millette had been retained by the plaintiffs but was never called to testify. At trial, Crane never objected to Dr. Millette’s study on hearsay or prejudice grounds, thereby failing to preserve these arguments for appeal. See United States v. Inserra, 34 F.3d 83, 90 n. 1 (2d Cir.1994) (holding that where defendant objected to admissibility only on ground of authenticity, defendant failed to preserve objection based on hearsay). We therefore review this evidentiary ruling for plain error, that is, to determine if the ruling “resulted] in a miscarriage of justice” or “is an obvious instance of misapplied law.” Latsis v. Chandris, Inc., 20 F.3d 45, 49-50 (2d Cir.1994) (internal quotation marks and citation omitted); see also United States v. Hourihan, 66 F.3d 458, 463 (2d Cir.1995). We see no plain error in the ruling that Dr. Millette’s study fell within the “learned treatise” hearsay exception. Fed.R.Evid. 803(18). Dr. Markowitz cited the study as an example of “peer reviewed literature” demonstrating “significant dust release or asbestos release from gasket material during use.” Although the study’s findings did not coincide with Dr. Markowitz’s direct testimony, his testimony about it was provoked by Crane’s asking, on cross-examination, whether Dr. Markowitz had “found any studies associating the use of asbestos-containing gaskets to the development of mesothelioma.” In light of this challenge to his direct testimony, it was reasonable for Dr. Markowitz to rely on Dr. Millette’s study to support his testimony regarding the causal connection between the release of asbestos fibers from gaskets and the development of mesothelioma. The authoritativeness of the study was adequately established through Dr. Markowitz’s testimony. See Fed.R.Evid. 803(18) (statements contained in published treatises, periodicals or pamphlets on a scientific or medical subject may be “established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice”). The fact that Dr. Mar-kowitz first mentioned the study on redirect is of no consequence. We also conclude that the admission of Dr. Millette’s study was not overly prejudicial. Crane had ample opportunity to" }, { "docid": "1434757", "title": "", "text": "in voice identification, but as a lay witness who had acquired considerable familiarity with the intercepted voices from her work monitoring the wiretap); United States. v. Rrapi, 175 F.3d 742, 751 (9th Cir.1999) (The FBI translator identified defendant’s voice discussing the crime.). Thus Nido’s qualifications in another area do not disqualify her as a lay witness for voice identification purposes provided she otherwise met the qualifications for the latter role. Federal Rule of Evidence 901(b) permits a witness to identify a voice “based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.” The bar for familiarity is not a high one. This court has held that hearing a defendant’s voice once during a court proceeding satisfies the minimal familiarity requirement. Mansoori, 304 F.3d at 665; see also Recendiz, 557 F.3d at 527 (DEA agent who listened to a recorded phone conversation between defendant and another speaker and then spoke with him during his arrest and post-arrest interview was qualified to testify that defendant’s voice at the hearing was the same one from recorded call); United States v. Jones, 600 F.3d 847, 857-58 (7th Cir.2010) (voice identification legally sufficient where a detective never personally spoke with defendant, but on four or five occasions heard .defendant speak in a courtroom uttering as little as two or three sentences each time); United States v. Khorrami, 895 F.2d 1186, 1194 (7th Cir.1990) (recorded phone conversations properly admitted based in part on testimony of a lay witness who identified the defendant’s voice after making one call to the defendant’s residence and comparing the voice of the person who answered to the voice on the recordings); United States v. Saulter, 60 F.3d 270, 276 (7th Cir.1995) (two short conversations during a drug purchase satisfied the minimal familiarity requirement); United States v. Grier, 866 F.2d 908, 921 (7th Cir.1989) (recordings properly admitted where FBI agent who had spoken once with the defendants identified their voices on the tapes). Questions concerning the accuracy of the identification in light of the amount of familiarity go to the weight the jury accords to the" }, { "docid": "22828697", "title": "", "text": "that the Confrontation Clause violations were obvious. Moreover, while Biggs’s testimony obviously veered from the expertise of interpreting drug code, the conclusion that he was relying on hearsay requires an inference that was not so obvious as to be correctable as plain error. Second, we have explained that an error affects a defendant’s “substantial rights” if it is “prejudicial” and it “affected the outcome of the district court proceedings.” United States v. Gore, 154 F.3d 34, 47 (2d Cir.1998) (citing Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Moreover, reversal for plain error is “to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (citations omitted). As we discuss below, the error here did not affect the outcome of the proceedings. Thus, the error did not affect substantial rights. Nor did it affect the fairness and integrity of the proceedings or yield a miscarriage of justice. Accordingly, we find that the district court’s admission of testimony in violation of the Confrontation Clause did not amount to plain error. Assuming arguendo that a proper hearsay objection was made, we now consider whether the non-constitutional evidentiary errors were harmless. See Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”). In order to uphold a verdict in the face of an evidentiary error, it must be “highly probable” that the error did not affect the verdict. United States v. Forrester, 60 F.3d 52, 64 (2d Cir.1995). Re versal is necessary only if the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” United States v. Castro, 813 F.2d 571, 577 (2d Cir.1987) (internal quotation marks omitted). The principal factors for such an inquiry are “the importance of the witness’s wrongly admitted testimony” and “the overall strength of the prosecution’s case.” Wray v. Johnson, 202 F.3d 515, 526 (2d Cir.2000). As the Supreme Court has explained, “[i]f, when all is said and done," }, { "docid": "23482221", "title": "", "text": "the ground that the government failed as a matter of law to establish the tapes’ authenticity. As noted, the audiotapes recorded telephone conversations between Barroso and other brokers. The district court admitted the tapes, over defense objection, after the brokers testified that they had listened to the tapes before trial and that they were fair and accurate recordings of their conversations. Under Fed.R.Evid. 901, “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R.Evid. 901(a). A trial court has broad discretion to determine whether a piece of evidence has been properly authenticated and its ruling will not be reversed absent an abuse of discretion. See United States v. Pluto, 176 F.3d 43, 49 (2d Cir.1999). Rule 901 also provides a non-exclusive list of “examples of authentication or identification conforming with the requirements of this rule.” Fed.R.Evid. 901(b). Included among those examples are “[tjestimony of witness with knowledge,” id. 901(b)(1), and “[i]dentifieation of a voice ... by opinion based upon hearing the voice at any time,” id. 901(b)(5). In Barroso’s case, the brokers who authenticated the tapes had firsthand knowledge of the conversations and each identified the voices on the tapes. Barroso, however, argues that the government also needed to establish a chain of custody for the tapes, relying upon United States v. Fuentes, 563 F.2d 527 (2d Cir.1977). In Fuentes, we upheld the admission of tapes as sufficiently authenticated by evidence of an unbroken chain of custody. See id. at 532. However, our upholding the authentication of tapes by establishing a chain of custody in the absence of testimony by a contemporaneous witness to the recorded conversations does not imply, as appellant suggests, that such a witness cannot provide equally sufficient authentication without proof of a chain of custody. Indeed, appellant’s position is contrary to the plain language of Rule 901. See United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990) (“[T]he government is not required to call as a witness a participant in a recorded" }, { "docid": "8250932", "title": "", "text": "that he was speaking on the remaining call. We therefore agree with the government that, in light of the undisputed identification of McGill’s voice on one call and the five days the jurors spent listening to McGill while he testified at trial, the jurors were in a very good position to determine for themselves whether McGill truthfully denied speaking on the other recordings. “Voice identification ... does not depend on specialized expertise. Juries may listen to an audiotape of a voice and determine who is speaking even though the voice has been authenticated only by a lay witness rather than an expert.” Tyson v. Keane, 159 F.3d 732, 738 (2d Cir.1998). The testimony of McGill’s expert also would have been subject to extensive cross-examination by the government about the science of voice-speetrographic analysis—as the government made clear during bench discussions of the subject—further diluting the testimony’s persuasive value. See United States v. Drones, 218 F.3d 496, 504 (5th Cir.2000). For those reasons, we reject McGill’s claim of reversible error based on the court’s exclusion of his voice-identification expert. IX. Joinder (McGill) McGill next asserts that the district court erred in joining his case with the other five appellants for trial. We reject McGill’s argument. A. In November 2000, the grand jury returned the indictment charging seventeen individuals—including the five appellants here—with numerous offenses. The trial of the Group One defendants began on March 1, 2001. On January 30, 2002, a defendant-turned-cooperator, Frank Howard, testified before the grand jury. Two days later, on February 1, 2002, McGill was indicted for tampering with a witness by killing and felon in possession of a firearm. A superseding indictment filed on March 13, 2002, added further counts against McGill, including drug conspiracy, RICO conspiracy, and violent crime in aid of racketeering activity. The superseding indictment named Group One codefendants Kevin Gray and Rodney Moore as the heads of the RICO conspiracy in which McGill allegedly participated. The indictment also alleged that McGill joined the enterprise in 1996, distributed cocaine on Gray’s behalf, and committed acts of violence—including the attempted murder of a witness—in order" }, { "docid": "6966862", "title": "", "text": "underscore the caution a district court should employ in allowing evidence couched in terms of numerical probabilities. Cf. United States v. Massey, 594 F.2d 676, 679-81 (8th Cir.1979) (testimony stating probability of match to be one chance in 4,500 unfairly confusing where no foundation for statement provided). . In general, we review an evidentiary miscue only for harmless error, dismissing it if “we determine that it is highly probable that the error did not contribute to the verdict.” Benavente Gomez, 921 F.2d at 386 (internal quotations and citations omitted). In this case, however, Trenk-ler also contends that the erroneously admitted evidence deprived him of his confrontation rights under the Sixth Amendment, see U.S. Const. amend. VI (\"In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”). Assuming ar-guendo that the admission of the EXIS-derived evidence rises to the level of constitutional error, we accordingly employ a stricter standard, asking whether we can consider the error harmless beyond a reasonable doubt. See United States v. Brennan, 994 F.2d 918, 927 (1st Cir.1993); see also United States v. Argentine, 814 F.2d 783, 788-89 (1st Cir.1987) (constitutional errors may not be regarded as harmless if there is a reasonable possibility that the error influenced the jury in reaching a verdict). . We note with some concern our dissenting colleague's suggestion that, notwithstanding Lin-dholm's testimony (elicited by the U.S. Attorney) that the government had not offered or promised Lindholm any consideration for his testimony, an implicit quid pro quo nonetheless existed for his cooperation. See infra at 69 n. 43. We find nothing in the record to support such an inference. . Our dissenting colleague correctly notes that, in ruling on the admission of the Quincy bomb evidence, the district court stated that it was \"adding” the statistical evidence to the expert's testimony. But we differ from his conclusion that it is “plain\" that the district court relied on the EXIS-derived evidence to form “the critical final link between the two devices,” see infra at 66. Indeed, the court's discussion focuses entirely on the expert" }, { "docid": "22394823", "title": "", "text": "that plain error review cannot be concluded without further proceedings in the district court. Accordingly, the judgments of the district court are AffiRmed insofar as they reflect defendants’ guilt on the crimes of conviction and the calculation of their Sentencing Guidelines by a preponderance of the evidence. The judgments are RemaNDed for further sentencing proceedings in conformity with this court’s decision today and in United States v. Crosby, 397 F.3d 103. . Although the enhanced sentence provision of § 841(b)(1)(A) is triggered by trafficking in amounts of five kilograms or more of cocaine, the substantive count of the indictment specifically charged ten kilograms or more of cocaine. . Prior to filing, this opinion has been circulated to all members of this Court. See, e.g., United States v. Crosby, 397 F.3d at 105 n. 1; United States v. Mincey, 380 F.3d 102, 103 n. 1 (2d Cir.2004). . Although the defense questioned the witness’s qualifications to make a voice identification, the challenge appears to have been little more than a distraction. The prosecution did not present the interpreter as an expert in voice identification, but as a lay witness who had acquired considerable familiarity with the intercepted voices from her work monitoring the wiretap. See Fed. R.Evid. 701. Indeed, the prosecution invited the jury to make its own comparison of Garcia's voice exemplar with the voice it contended was his on the intercepted tapes. See Trial Tr. at 385-86, 422-24. In any event, Garcia's identity as the speaker on a number of the intercepted calls could not seriously be disputed in light of Tejada's testimony as well as surveillance observations, discussed infra, which placed Garcia (or a vehicle linked to him) at specific sites soon after recorded calls in which the speaker alleged to be Garcia agreed to meet at the same locations. . The intercepted telephone calls and translated transcripts were, in fact, authenticated and received in evidence before Agent Klemick testified but not presented for jury review until after Klemick offered the challenged opinion testimony. . The government does not contend that the challenged testimony was admissible as an" }, { "docid": "23482222", "title": "", "text": "a voice ... by opinion based upon hearing the voice at any time,” id. 901(b)(5). In Barroso’s case, the brokers who authenticated the tapes had firsthand knowledge of the conversations and each identified the voices on the tapes. Barroso, however, argues that the government also needed to establish a chain of custody for the tapes, relying upon United States v. Fuentes, 563 F.2d 527 (2d Cir.1977). In Fuentes, we upheld the admission of tapes as sufficiently authenticated by evidence of an unbroken chain of custody. See id. at 532. However, our upholding the authentication of tapes by establishing a chain of custody in the absence of testimony by a contemporaneous witness to the recorded conversations does not imply, as appellant suggests, that such a witness cannot provide equally sufficient authentication without proof of a chain of custody. Indeed, appellant’s position is contrary to the plain language of Rule 901. See United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990) (“[T]he government is not required to call as a witness a participant in a recorded conversation in order to authenticate the recording; it may lay the foundation for the recording through the testimony of the technician who actually made it.”); United States v. Rizzo, 492 F.2d 443, 448 (2d Cir.1974) (holding that voice identification by three detectives was sufficient); United States v. Albert, 595 F.2d 283, 290 (5th Cir.1979) (voice identification by conversation participant proper); see also Pluta, 176 F.3d at 49 (“The burden of authentication does not require the proponent of the evidence to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be. Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood.” (quoting United States v. Holmquist, 36 F.3d 154, 168 (1st Cir.1994)). Finally, Fuentes also noted that “this Circuit has never expressly adopted a rigid standard for determining the admissibility of tape recordings.” 563 F.2d at 532. The district court therefore did not abuse its discretion in admitting the tapes. Authentication of course merely renders the tapes admissible, leaving the" }, { "docid": "8775872", "title": "", "text": "of] ‘Telephon[ic equipment.]’ ” Tr. vol. 29 at 5404. b. authenticity Concerning the authenticity of the speakers' voices on the tapes, both Mr. Castrel-lon and Mr. Alvarez stipulated that “Government Exhibits Rudy’s 1 through 110 correctly identified the speakers in those conversations, including the defendants where the names appear as a speak-er____” Tr. vol. 9 at 1602. A similar stipulation applies concerning the Whipple tapes. In addition, both Mr. Holguin and Ms. Rivera stipulated to the correctness of all voices but their own. Moreover, we find abundant evidence in the record to refute squarely the contentions raised by Mr. Holguin. Rule 901 of the Federal Rules of Evidence provides guidelines for authenticating voices as a precondition for admissibility of evidence. The rule provides in relevant part: (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. Fed.R.Evid. 901(b)(5). As the advisory committee notes further clarify, “[s]ince aural voice identification is not a subject of expert testimony, the requisite familiarity may be acquired either before or after the particular speaking which is the subject of the identification____” Fed.R.Evid. 901 advisory committee’s notes (emphasis supplied). Courts interpreting this Rule have accepted its plain meaning. See, e.g., United States v. Cerone, 830 F.2d 938, 949 (8th Cir.1987) (“Any person may identify a speaker’s voice if he has heard the voice at any time.”), cert. denied, — U.S. -, 108 S.Ct. 1730, 100 L.Ed.2d 194 (1988); United States v. Gironda, 758 F.2d 1201, 1218 (7th Cir.) (witness was familiar with voice of defendant based on at least three conversations prior to telephone call at issue), cert. denied, 474 U.S. 1004, 106 S.Ct. 523, 88 L.Ed.2d 456 (1985); United States v. Cambindo Valencia, 609 F.2d 603, 640 (2d Cir.1979) (witness properly identified defendant based on listening to voice exemplar), cert. denied," }, { "docid": "8775873", "title": "", "text": "upon hearing the voice at any time under circumstances connecting it with the alleged speaker. Fed.R.Evid. 901(b)(5). As the advisory committee notes further clarify, “[s]ince aural voice identification is not a subject of expert testimony, the requisite familiarity may be acquired either before or after the particular speaking which is the subject of the identification____” Fed.R.Evid. 901 advisory committee’s notes (emphasis supplied). Courts interpreting this Rule have accepted its plain meaning. See, e.g., United States v. Cerone, 830 F.2d 938, 949 (8th Cir.1987) (“Any person may identify a speaker’s voice if he has heard the voice at any time.”), cert. denied, — U.S. -, 108 S.Ct. 1730, 100 L.Ed.2d 194 (1988); United States v. Gironda, 758 F.2d 1201, 1218 (7th Cir.) (witness was familiar with voice of defendant based on at least three conversations prior to telephone call at issue), cert. denied, 474 U.S. 1004, 106 S.Ct. 523, 88 L.Ed.2d 456 (1985); United States v. Cambindo Valencia, 609 F.2d 603, 640 (2d Cir.1979) (witness properly identified defendant based on listening to voice exemplar), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980); United States v. Watson, 594 F.2d 1330, 1335 (10th Cir.) (witness may identify defendant based on conversations held “either before or after the particular speaking which is the subject of the identification”), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979). Here, the government introduced testimony from three witnesses: FBI Agent John Edward Hernandez; Jose Buergo, an assistant professor of Spanish at the University of Illinois; and Gladys Wilson, a former romantic interest of Mr. Holguin. Concerning Mr. Holguin, Agent Hernandez testified that he conversed with the appellant in Spanish for “approximately four to five hours,” tr. vol. 9 at 1674-75, and that he heard Mr. Holguin testify at a pretrial hearing for an additional forty-five minutes. Agent Hernandez also testified that he listened to the tape recordings “[i]n excess of five [hundred] to 600 hours.” Id. at 1670. Based on this foundation, he then expressed his opinion that “the transcripts correctly identified Gustavo Dejesus Hol-guin.” Id. at 1676. Moreover, Gladys Wilson" }, { "docid": "23410674", "title": "", "text": "are also questions of conditional relevancy. . Advisory Committee Notes to Rule 901(a). . Medley v. United States, 155 F.2d 857 (D.C. Cir.) cert, denied, 328 U.S. 873, 66 S.Ct. 1377, 90 L.Ed. 1642 (1946), cited by the defendants, does not even mention authentication, and contains no consideration of the issues involved here. Similarly there is no mention or indication that authentication is an issue in Lathrop v. Henkeis & McCoy, Inc., 351 F.Supp. 1052 (E.D.Pa.1972). Coughlin v. Capital Cement Co., 571 F.2d 290 (5th Cir. 1978), cited by defendants, is an example of a case explicitly decided on the basis of the requirements of 803(6), but using the term “authentication” to refer to the foundation requirements under that rule. We feel that it is better practice, in order to avoid semantic confusion, to confine the use of the term “authentication” to requirements under rule 901. . The court in Rhoads concluded that since the proffered drawings did not qualify as either official written statements or as business records they had been properly excluded, 476 F.2d at 86. . Rule 901(b): (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. (2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. (3) Comparison by trier or expert witnesses. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. (6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone" }, { "docid": "23631515", "title": "", "text": "if Dr. Markowitz’s testimony was admitted improperly, that error cannot be said to have resulted in a “seriously erroneous result” or a “miscarriage of justice” because other, unchallenged testimony established the same facts. Moreover, Crane was permitted to cross-examine both Drs. Markowitz and Miller, and to present testimony from its own experts refuting the opinions of Drs. Markowitz and Miller. There similarly is no ground to grant a new trial with respect to testimony about Dr. Millette’s study. Crane argues that it was error for the district court to hold the study fell within the “learned treatise” exception to the hearsay rule, see Fed.R.Evid. 803(18), because: (i) Dr. Markowitz could not have reasonably relied on the study because his conclusions differed from those of the study; (ii) the plaintiffs failed to lay a foundation establishing that the article publishing the study’s findings was itself an authoritative publication in the relevant field of study; and (iii) Dr. Markowitz testified about the study on redirect, not direct. Crane also argues that the admission of the study was more prejudicial than probative, see Fed.R.Evid. 403, because Dr. Millette had been retained by the plaintiffs but was never called to testify. At trial, Crane never objected to Dr. Millette’s study on hearsay or prejudice grounds, thereby failing to preserve these arguments for appeal. See United States v. Inserra, 34 F.3d 83, 90 n. 1 (2d Cir.1994) (holding that where defendant objected to admissibility only on ground of authenticity, defendant failed to preserve objection based on hearsay). We therefore review this evidentiary ruling for plain error, that is, to determine if the ruling “resulted] in a miscarriage of justice” or “is an obvious instance of misapplied law.” Latsis v. Chandris, Inc., 20 F.3d 45, 49-50 (2d Cir.1994) (internal quotation marks and citation omitted); see also United States v. Hourihan, 66 F.3d 458, 463 (2d Cir.1995). We see no plain error in the ruling that Dr. Millette’s study fell within the “learned treatise” hearsay exception. Fed.R.Evid. 803(18). Dr. Markowitz cited the study as an example of “peer reviewed literature” demonstrating “significant dust release or asbestos release" }, { "docid": "1434752", "title": "", "text": "trial and that the English translations of the Spanish-language calls were authentic. Two days after the trial began and the day before Galindo was due to testify, Mendiola’s counsel informed the government that he would stipulate to the translations of the transcripts and the identities of the speakers for each transcript with the exception of the identity of Mendiola himself. The government then informed defense counsel that it intended to call a DEA linguist to compare a known voice exemplar of the defendant obtained from calls recorded at the Metropolitan Correctional Center in Chicago to the voices in selected calls offered into evidence. Over objection from Mendiola, Nido testified that the voice on four of the calls, “sounded very similar, if not identical” to that on the voice exemplar of Mendiola. App. R. 32-3, p. 699; D. Ct. R. 232, p. 161; Tr. 6/1/09, p. 509. After the guilty verdict, Mendiola filed post-trial motions requesting acquittal, or in the alternative, a new trial, claiming, in part, that the district court erred in admitting the DEA linguist’s voice authentication testimony under Federal Rules of Evidence 701, 702, and 1002. In rejecting the motion for acquittal or a new trial, the district court determined that Nido had sufficient familiarity with Mendiola’s voice and that the prosecution did not tender Nido as an expert witness, nor did it need to. Mendiola appeals to this court and we affirm. We review a district court’s eviden-tiary rulings for abuse of discretion. United States v. Stadfeld, 689 F.3d 705, 712 (7th Cir.2012). Mendiola bandies about the de novo standard, but as our discussion will reveal, this was a simple evidentiary ruling about whether Nido met the requirements for identifying a voice or not. The district court did not have to interpret the Federal Rules of Evidence. This is just one of the ways in which Mendiola’s 13,939-word, single-issue brief creates complexities where there are none. In fact, there is but a single issue presented on appeal: Whether the district court erred in admitting Nido’s voice identification. According to Mendiola, the initial issue we need to address" }, { "docid": "8250931", "title": "", "text": "be excused on grounds that he was caught off guard. McGill notes that he put the government on notice that he intended to call the voice expert and passed along the expert’s reports to the government. But the fact that McGill made information about his expert available to the government is not determinative of whether he made an adequate and timely proffer to the court—and the court bears responsibility to assure that the expert’s testimony is based on scientific knowledge and will assist the trier of fact. Even if we did not sustain the district court’s decision on those timeliness grounds, we can say with fair assurance that any error was harmless because it “did not have a ‘substantial and injurious effect or influence in determining the jury’s verdict.’” United States v. Powell, 334 F.3d 42, 45 (D.C.Cir.2003) (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239). The government introduced three wiretapped calls purportedly containing McGill’s voice. While McGill took the stand and denied that he was speaking on two of the calls, he acknowledged that he was speaking on the remaining call. We therefore agree with the government that, in light of the undisputed identification of McGill’s voice on one call and the five days the jurors spent listening to McGill while he testified at trial, the jurors were in a very good position to determine for themselves whether McGill truthfully denied speaking on the other recordings. “Voice identification ... does not depend on specialized expertise. Juries may listen to an audiotape of a voice and determine who is speaking even though the voice has been authenticated only by a lay witness rather than an expert.” Tyson v. Keane, 159 F.3d 732, 738 (2d Cir.1998). The testimony of McGill’s expert also would have been subject to extensive cross-examination by the government about the science of voice-speetrographic analysis—as the government made clear during bench discussions of the subject—further diluting the testimony’s persuasive value. See United States v. Drones, 218 F.3d 496, 504 (5th Cir.2000). For those reasons, we reject McGill’s claim of reversible error based on the court’s exclusion of" }, { "docid": "8775868", "title": "", "text": "listened to when they identified the voices in question,” Holguin’s Br. at 79; (2) did not testify as to “when, where, how or who else was present when they heard what ever [sic] tapes they heard,” id.; and (3) did not listen to tapes in open court for identification before the jury. In contrast, concerning the accuracy of the recordings, the government contends that there was ample evidence to establish that every piece of equipment involved in the production of the tapes worked properly in producing an accurate recording of the appellants’ voices. As to the authenticity of the recordings, the government contends that the issue was never raised before the district court and, therefore, that the argument is waived on appeal. On the merits, the government argues that its witnesses had sufficient familiarity with Mr. Holguin’s and Ms. Rivera’s voices to identify them as speakers on the tapes. 2. Analysis Upon reviewing the record, we believe that Mr. Holguin preserved, albeit marginally, all these issues. Accordingly, we address their merits. We previously have held that “[t]ape recordings are only admissible if the Government can establish, by clear and convincing evidence, that the recordings are ‘true, accurate, and authentic recordingfs] of the conversations], at given time[s], between the parties involved.’ ” United States v. Keck, 773 F.2d 759, 766 (7th Cir.1985) (quoting United States v. Faurote, 749 F.2d 40, 43 (7th Cir.1984)). The district court must determine whether “the recordings involved conversations that occurred between defendants in this suit.” Id. Here, the district court determined that the government had met its burden and admitted the voice recordings and transcripts into evidence. It is well established that a district court’s general evidentiary rulings will be reversed only upon a showing of clear abuse of discretion. United States v. Garner, 837 F.2d 1404, 1416 (7th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988); Davis v. Lane, 814 F.2d 397, 399 (7th Cir.1987); accord Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1266 (7th Cir.1988). This standard also governs our review of a district court’s decision to admit" }, { "docid": "7554804", "title": "", "text": "938, 946.” Llinas, 603 F.2d at 508. Rather than excluding the use of transcripts containing translations of foreign languages to English, it is more properly the function of the finder-of-fact to weigh the evidence presented by the parties as to the accuracy of the proffered translation and to determine the reliability of the translation on the basis of that evidence. Cf. United States v. Torrez-Flores, 624 F.2d 776, 781 (7th Cir.1980) (reliability of a translator is an issue of credibility for the trier of fact to resolve); United States v. Cruz, 765 F.2d 1020, 1023 n. 4 (11th Cir.1985) (interpretation of a foreign language translation presents a jury question). In the case at hand, the jury had the opportunity to listen to the tapes and determine the accuracy of the translations in the government-prepared transcripts in light of the thorough cross-examination and testimony of all the witnesses, including the testimony of those witnesses with expertise in language translation, dealing with the accuracy of those transcripts. Because the defendant had ample opportunity not only to challenge the accuracy of the government’s transcript through cross-examination and expert testimony, but also, if he so desired, to present his own transcript, we hold that the defendant’s challenge to the district court’s decision to allow the jury to use the government’s transcript as an aid to listening to the taped conversations is without merit. Jesus Zambrana also asserts that the transcripts should not have listed the names of the purported speakers, alleging that the procedure to identify some of the voices was improperly suggestive. “Tape recordings are only admissible if the government can establish, by clear and convincing evidence, that the recordings are ‘true, accurate, and authentic recording[s] of the conversation^], at given time[s], between the parties involved.’ ” United States v. Keck, 778 F.2d 759, 766 (7th Cir.1985) (quoting United States v. Faurote, 749 F.2d 40, 43 (7th Cir.1984)). Specifically, Jesus Zambrana claims that Agent McDaniel’s identification of Zambrana’s voice on the tape-recorded conversations was tainted when he viewed a transcript listing Jesus Zambrana as the speaker pri- or to listening to the first" }, { "docid": "23041976", "title": "", "text": "U.S. at 326, 107 S.Ct. at 1153. Accordingly, we hold that the district court did not err in admitting the evidence seized from the Buchanan residence subsequent to the field test. B Diana Buchanan next argues that the district court erred when it admitted into evidence two taped conversations between her and an HPD officer. Diana Buchanan maintains that the recording was never properly authenticated. A district court has broad discretion in determining whether or not a sound recording should be admitted. United States v. Biggins, 551 F.2d 64, 66 (5th Cir.1977). We will find error only where the district court abuses this discretion. United States v. Eakes, 783 F.2d 499, 506-07 (5th Cir.), cert. denied, 477 U.S. 906, 106 S.Ct. 3277, 91 L.Ed.2d 567 (1986). The government has the burden of demonstrating that the recording, as played, “is an accurate reproduction of relevant sounds previously audited by a witness.” Biggins, 551 F.2d at 66. Generally, this burden requires the government to demonstrate (1) the operator’s competency, (2) the fidelity of the recording equipment, (3) the absence of material alterations, and (4) the identification of relevant sounds or voices. Id.; United States v. Stone, 960 F.2d 426, 436 (5th Cir.1992). Although compliance with the Biggins requirements is the “preferred method” of proceeding, strict compliance is not required. See Biggins, 551 F.2d at 67 (“[The district court’s] discretion is not to be sacrificed to a formalistic adherence to the standard we establish.”). The district court may admit the recording in the absence of these requirements if, upon independent examination, the district court is convinced that “the recording accurately reproduces the auditory experience.” Stone, 960 F.2d at 436 (citation omitted). The recording in question includes two conversations in which an undercover officer discusses purchasing cocaine with Diana Buchanan. At the conclusion of each conversation, another voice indicates the date and time of the conversations. Testimony established that both officers present during the recording (an undercover officer who attempted to negotiate the drug purchase and the officer who indicated the time and date of the conversations) could hear the conversations as they occurred." }, { "docid": "8970445", "title": "", "text": "shows authentication of the DeLuna notes. An analysis of the notes seized in a search of DeLuna’s home revealed that DeLuna had written the notes. The notes carried DeLuna’s fingerprints. Thus, the notes were properly authenticated as declarations of a co-conspirator. See DeLuna, 763 F.2d at 908-09; United States v. Helmel, 769 F.2d 1306, 1312 (8th Cir.1985). The notes were also in furtherance of the conspiracy. They documented numerous meetings among the conspirators and other events, which were corroborated by surveillance and testimony of several witnesses. Accordingly, the district court committed no error in admitting the DeLuna notes. I. Voice Identification Appellant LaPietra argues that the Government failed to adequately identify his voice in several tape recorded phone calls and accordingly, those tapes may not be used to connect him with the conspiracy. The district court did not err when it allowed the identification of LaPietra’s voice. FBI Agent Thomeczek testified as to his supervision of the recordings and that he listened to all tapes used as exhibits. He also spoke with LaPietra several times after the indictment was issued and testified that the voice in question was that of LaPietra. Any person may identify a speaker's voice if he has heard the voice at any time. United States v. Smith, 635 F.2d 716, 719 (8th Cir.1980); United States v. Vitale, 549 F.2d 71, 73 (8th Cir.), cert. denied, 431 U.S. 907, 97 S.Ct. 1704, 52 L.Ed.2d 393 (1977) (per curiam). Minimal familiarity is sufficient for admissibility purposes. Attacks on the accuracy of the identification go to the weight of the evidence, and the issue is for the jury to decide. Smith, 635 F.2d at 719; Vitale, 549 F.2d at 73. Accordingly, the district court did not abuse its discretion when it admitted the identification of LaPietra’s voice into evidence. J. Withdrawal of Overt Act 51 From Jury Consideration LaPietra also contends that the district court erred when it instructed the jury to disregard overt act 51. At trial, it was admitted that LaPietra’s voice was misidentified in the phone call constituting overt act 51. LaPietra argues that the court’s" }, { "docid": "15334715", "title": "", "text": "testimony about Williams’s drug use, drug dealing, .and prior convictions, the district court was within its discretion to conclude that the questions were of little utility. Hughes argues finally that the district court improperly cut off questions to Sutherland about the precautions the police took to protect Williams on the day of his murder. According to Hughes, this prevented counsel from developing her theory that Hughes was simply a scapegoat for police who had failed to protect an informant. But because Hughes was not convicted of the murder of Arvell Williams or of any counts related to the murder, any error-in restricting cross on Hughes’s thoroughly speculative theory was harmless. E. Admission of Audiotapes (Hutchinson) Claiming that the August 19 and 21 NAGRA tapes were not properly authenticated, appellant Hutchinson challenges their admission, as well as the jury’s use of Government-prepared transcripts while listening to the tapes. He also challenges Sergeant Sutherland’s identification of his voice, claiming that the identification rested at least in part on an un-Mirandized, post-arrest conversation. Admission of tape recordings falls within the “sound discretion” of the trial court. United States v. Sandoval, 709 F.2d 1553, 1554 (D.C.Cir.1983) (citing United States v. Slade, 627 F.2d 293, 301 (D.C.Cir.1980)). Because Hutchinson failed to challenge Sutherland’s voice identification in the district court, we review that claim for plain error only. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). To authenticate the tapes, the prosecution put on Officer Larry Sterling, who described the characteristics of a NAGRA recording device and identified the original tapes from the August 19 and 21 drug transactions. Sterling explained how he made copies of the originals and testified that the tapes were never reused. Sergeant Sutherland confirmed that the portions of the two conversations in which he participated were accurately recorded. We have held that absent a showing of bad faith or evidence tampering, the Government need only “demonstrate that, ‘as a matter of reasonable probability,’ possibilities of misidentifieation and adulteration have been eliminated.” United States v. Stewart, 104 F.3d 1377, 1383 (D.C.Cir.1997) (quoting United" } ]

[ { "docid": "17597604", "title": "", "text": "would produce the same result on the particular issue presented, there is a 'false conflict,’ and the Court should avoid the choice-of-law question.”); 'Williams v. Stone, 109 F.3d 890, 893 (3d Cir.1997) (same); Lucker Mfg. v. Home Ins. Co., 23 F.3d 808, 813 (3d Cir.1994) (same); Coons v. Lawlor, 804 F.2d 28, 30 (3d Cir.1986) (“If the various laws that might be applied to the case do not differ on the relevant issue, there is a false conflict.”); Complaint of Bankers Trust Co., 752 F.2d 874, 882 (3d Cir.1984) (\"If the foreign law to which the forum's choice-of-law rule refers does not differ from that of the forum on the issue, the issue presents a 'false conflict.’ ”). . See also Budtel Assoc., LP v. Continental Cas. Co., 915 A.2d 640, 641 (2006) (\"[T]he first step in a choice of law analysis under Pennsylvania law is to determine whether a conflict exists between the laws of the competing states. If no conflict exists, further analysis is unnecessary. If a conflict is found, it must be determined which state has the greater interest in the application of its law.”) (internal citations omitted); Thibodeau v. Comcast Corp., 912 A.2d 874, 886 (Pa.Super.Ct. Dec. 1, 2006) (same); Wilson v. Transp. Ins. Co., 889 A.2d 563, 571 (Pa.Super.Ct.2005) (same); Keystone Aerial Surveys, Inc. v. Pennsylvania Prop. & Cas. Ins. Guar. Assoc., 777 A.2d 84, 94 (Pa.Super.Ct.2001) (same). . See also Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216, 220 (3d Cir.2005) (\"A true conflict exists 'when the governmental interests of [multiple] jurisdictions would be impaired if their law were not applied.’ ”) (quoting Lacey, 932 F.2d at 187 n. 15); Budget Rent-A-Car Sys., Inc. v. Chappell, 407 F.3d 166, 170 (3d Cir.2005) (same); LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir.1996) (same); Shuder v. McDonald’s Corp., 859 F.2d 266 (3d Cir.1988) (finding the existence of a \"true conflict” because the application of \"the law of either Virginia or Pennsylvania [would] further the policies of that state”); Rosen v. Tesoro Petroleum Corp., 399 Pa.Super. 226, 582 A.2d 27, 31 (1990) (\"[T]his is not" } ]

[ { "docid": "14971532", "title": "", "text": "suit. Sprinturf moved for partial summary judgment on the issue of when Continental was required to provide for its defense. Sprinturf contended that Continental was required to provide a defense when it received notice of Shasta’s original complaint because the Shasta complaint alleged property damage to another party’s work product. In response, Continental filed a cross-motion for summary judgment, arguing that Sprinturf could not establish that it was required to defend or indemnify it based on the allegations in either of the Shasta complaints. Specifically, Continental argued that the property damage alleged in the Shasta complaints was not caused by an “occurrence” covered under the policy and, in the alternative, that policy exclusions applied to the type of damage alleged. The District Court entered summary judgment in favor of Continental. It first concluded that Pennsylvania law applied to the issue of coverage under the insurance contract. The Court then determined that all of the claims in Shasta’s lawsuit, including the negligence claims, were based on “allegations of faulty workmanship and failure to comply with the contract documents, which are not accidents.” JA 6. Accordingly, the Court held that the alleged property damage had not been caused by an “occurrence” and that Continental had no duty to defend Sprinturf under Pennsylvania law. Sprinturf filed a timely notice of appeal. II. Choice of Law The parties agree that the choice of law rules of the forum state, Pennsylvania, apply when a federal court is sitting in diversity. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Further, they agree that Pennsylvania applies a “flexible rule which permits analysis of the policies and interests underlying the particular issue before the court” and directs courts to apply the law of the state with the “most interest in the problem.” Hammersmith v. TIG Ins. Co., 480 F.3d 220, 227 (3d Cir.2007) (quoting Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, 805-06 (1964)); see Budtel Assocs., LP v. Conti nental Cas. Co., 915 A.2d 640, 644-45 (Pa.Super.Ct.2006) (holding that the Griffith choice" }, { "docid": "12682297", "title": "", "text": "concluded that Pennsylvania law should apply because Pennsylvania had a significant interest in the underlying action which justified ignoring the contractual choice of law provision. This appeal only considers the issue of whether Heller can successfully bring Vistek into the underlying action as a third party defendant. II. This court exercises plenary review over district court orders granting a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(e). See e.g., Jablonski v. Pan American World Airways Inc., 863 F.2d 289, 290 (3d Cir.1988). Under Rule 12(c), we will not grant judgment on the pleadings “unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.” Id. (quoting Society Hill Civic Association v. Harris, 632 F.2d 1045, 1054 (3d Cir.1980) (citation omitted). A. We must determine: first, whether Pennsylvania or Illinois law controls the interpretation of the indemnity clause of the lease agreement; and second, whether the indemnity clause is enforceable under the applicable law. A federal court exercising .diversity jurisdiction must apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 497, 61 S.Ct. 1020, 1022, 85 L.Ed. 1477 (1941); American Air Filter Co. v. McNichol, 527 F.2d 1297, 1299 n. 4 (3d Cir.1975). Accordingly, we apply Pennsylvania choice of law rules in this case. Pennsylvania courts generally honor the intent of the contracting parties and enforce choice of law provisions in contracts executed by them. Smith v. Commonwealth Nat. Bank, 384 Pa.Super. 65, 557 A.2d 775, 777 (1989), appeal denied, 524 Pa. 610, 569 A.2d 1369 (1990). Pennsylvania courts have adopted section 187 of the Restatement, Second, Conflict of Laws which provides that: (1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue. (2) The law of the state chosen by the parties to govern their contractual rights and" }, { "docid": "19782881", "title": "", "text": "to decide.” In making the determination of arbitrability, we must first consider whether to apply Pennsylvania law or Delaware law. Kaneff argues that the contract is unconscionable under Pennsylvania law, a challenge that requires us to conduct a choice of law analysis inasmuch as Delaware law is specified in the contract. We exercise plenary review over the question of which state’s substantive law governs. Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006). It is now black letter law that “in an action based on diversity of citizenship jurisdiction, we must apply the substantive law of the state in which the District Court sat, including its choice of law rules.” Id. (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). Here, that state is Pennsylvania. Applying Pennsylvania’s choice of law rules, we must determine whether there is a true conflict between the application of Delaware law and Pennsylvania law. As discussed below, a true conflict exists here. Because this is a contract case, the law of the state specified in the contract will be applied unless: (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188 [of the Restatement (Second) of Conflicts of Law], would be the state of the applicable law in the absence of an effective choice of law by the parties. Berg, 435 F.3d at 463-64 (quoting Restatement (Second) of Conflicts of Law § 187(2) (1971)). See also Gay v. Creditlnform, 511 F.3d 369, 389 (3d Cir.2007) (“it seems reasonable to use Pennsylvania law in evaluating the choice-of-law question”). Inasmuch as Delaware is where the contract was signed, we conclude that part (a) above is satisfied because there is a substantial relationship" }, { "docid": "11829629", "title": "", "text": "of such systems and guarding against defective products within its borders, such a factor clearly weighs in favor of transfer. 6. The Familiarity of the Trial Judge with the Applicable State Law in Diversity Cases Finally, “justice requires that, whenever possible, a diversity case should be decided by the court most familiar with the applicable state law.” Am. Senso RX, Inc. v. Banner Pharmcaps, Inc., No. 06-CV-1929, 2006 WL 2583450, at *6 (D.N.J. Sep. 6, 2006) (quotations omitted). In a diversity action, a federal court must apply the choice of law rules of the state in which it sits. Klason v. Stentor Elec. Mfg. Co., 313 U.S. 487, 497, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). When, however, a case is transferred for the convenience of the parties, pursuant to 28 U.S.C. § 1404(a), the transferee court must apply the law, including the choice of law rules, that the transferor court would have applied. Van Dusen v. Barrack, 376 U.S. 612, 635-37, 84 S.Ct. 805, 818-19, 11 L.Ed.2d 945 (1964). Pennsylvania’s choice of law approach adopts a “flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Coram Healthcare Corp. v. Aetna U.S. Healthcare, Inc., 94 F.Supp.2d 589, 594 (E.D.Pa.1999) (quoting Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, 805 (1964)). It entails three steps. First, the court must determine whether a real conflict exists, that is, whether these states would actually treat this issue any differently. Hammersmith v. TIG Ins. Co., 480 F.3d 220, 230 (3d Cir.2007); Prell v. Columbia Sussex Corp., No. 07-CV-2189, 2007 WL 3119852, at *3 (E.D.Pa. Oct. 22, 2007). If there is no substantive difference between the laws of the competing states, no real conflict exists and forum law applies. Hammersmith, 480 F.3d at 230; Air Prods, and Chems. v. Eaton Metal Prods. Co., 272 F.Supp.2d 482, 490 n. 9 (E.D.Pa.2003). Where a real conflict exists, the court moves to the second step and examines the governmental policies underlying each law in order to classify the conflict as true, false or an unprovided" }, { "docid": "16058815", "title": "", "text": "it sits. Hammersmith v. TIG Ins. Co., 480 F.3d 220, 226 (3d Cir.2007) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). Because this Court sits in the Eastern District of Pennsylvania, Pennsylvania choice-of-law rules apply- If the parties have not agreed upon a choice of law, Pennsylvania employs a two-step process to resolve choice-of-law questions. Hammersmith, 480 F.3d at 229. First, the court must determine if there is a real conflict. Id. There is no real conflict where the application of either state’s law renders the same result. Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir.2006). If there is no difference between the laws of the forum state and those of the foreign jurisdiction, the court may bypass the choice-of-law issue, rely interchangeably on the law of both states, and presume the law of the forum state controls. Hammersmith, 480 F.3d at 229. However, if there is a conflict, the court proceeds to the second step and characterizes the conflict as “true,” “false,” or “unprovided for.” Id. at 230. A “true” conflict exists where both states have an interest in applying their own law. Id. A “false” conflict exists when only one state has an actual interest in applying its law. Id. The situation is “unprovided for” when neither state has an interest in applying its own law. Id. “ ‘A deeper [choice of law] analysis’ is necessary only if both jurisdictions’ interest would be impaired by the application of the other’s laws (i.e., there is a true conflict).” Id. (citing Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854, 856 (1970)). Where there is a true conflict, the court must determine “which state has the greater interest in the application of its law.” Id. at 231. This inquiry employs a combination of “the approaches of both [the] Restatement II (contacts establishing significant relationships) and ‘interest analysis’ (qualitative appraisal of the relevant States’ policies with respect to the controversy).’ ” Id. (citing Melville v. American Home Assurance Co., 584 F.2d 1306, 1311 (3d Cir.1978)). This" }, { "docid": "4304058", "title": "", "text": "issue of material fact exists, but if the non-moving party fails to produce sufficient evidence in connection -with an essential element of a claim for which it has the burden of proof, then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). III. CHOICE OF LAW As a federal court sitting in diversity jurisdiction, this court applies the choice of law rules of Pennsylvania, our forum state. Klaxon Co. v. Stentor Elec. Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). According to Pennsylvania choice of law principles, two states have significant relationships and interests in this action: Pennsylvania, where Saucony is incorporated and the Site is located; and Massachusetts, where Hyde is incorporated and where Hyde entered into its insurance contracts with Continental, GNY, and Lumbermens. In this case, the court is spared the task of resolving a choice of law question because there is no actual conflict between the potentially applicable bodies of law. “[W]here the laws of the two jurisdictions would produce the same result on the particular issues presented, there is a ‘false conflict’ and the court should avoid the choice-of-law question.” Williams v. Stone, 109 F.3d 890, 893 (3d Cir.1997) (citations omitted). Research by the parties and by this court reveals that the laws of Massachusetts and Pennsylvania resolve the legal issues of this case in the same manner. In addition, no party has objected to the application of Pennsylvania law, so the court may consider any such objections waived. See, e.g., Neely v. Club Med Management Services, Inc., 63 F.3d 166, 180 (3d Cir.1995). For these reasons, the court will eschew a choice of law analysis, and will apply Pennsylvania law. IV. DUTY TO DEFEND Under Pennsylvania law, the duty to defend is broad. “[T]he issuer of a general liability policy has a duty to defend its insured when the allegations in the complaint against it could potentially fall within the coverage of the policy.” Air Products and Chemicals, Inc. v. Hartford Accident and Indemn. Co.," }, { "docid": "14971533", "title": "", "text": "contract documents, which are not accidents.” JA 6. Accordingly, the Court held that the alleged property damage had not been caused by an “occurrence” and that Continental had no duty to defend Sprinturf under Pennsylvania law. Sprinturf filed a timely notice of appeal. II. Choice of Law The parties agree that the choice of law rules of the forum state, Pennsylvania, apply when a federal court is sitting in diversity. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Further, they agree that Pennsylvania applies a “flexible rule which permits analysis of the policies and interests underlying the particular issue before the court” and directs courts to apply the law of the state with the “most interest in the problem.” Hammersmith v. TIG Ins. Co., 480 F.3d 220, 227 (3d Cir.2007) (quoting Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, 805-06 (1964)); see Budtel Assocs., LP v. Conti nental Cas. Co., 915 A.2d 640, 644-45 (Pa.Super.Ct.2006) (holding that the Griffith choice of law rule applied in the contract law context). In applying this rule, if confronted with a true conflict, we first consider each state’s contacts with the contract as set forth in the Restatement (Second) of Conflict of Laws. See Hammersmith, 480 F.3d at 231; Compagnie des Bauxites de Guinee v. Argonauh-Midwest Ins. Co., 880 F.2d 685, 688-89 (3d Cir. 1989); Melville v. Am. Home Assurance Co., 584 F.2d 1306, 1311 (3d Cir.1978). We then “weigh the contacts on a qualitative scale according to their relation to the policies and interests underlying the [relevant] issue.” Shields v. Consol. Rail Corp., 810 F.2d 397, 400 (3d Cir.1987). We must first determine whether there is a true conflict between the relevant laws of California and Pennsylvania. Hammersmith, 480 F.3d at 230. A “ ‘deeper [choice of law] analysis’ is necessary only if both jurisdictions’ interests would be impaired by the application of the other’s laws.” Id. (emphasis in original) (quoting Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854, 856 (1970)). When both states’ interests would be" }, { "docid": "14387666", "title": "", "text": "to the plaintiffs’ motion for summary judgment, (Doc. No. 86), a statement of material facts and response to the plaintiffs’ statement of facts, (Doc. Nos. 88-89), and two affidavits, (Doc. Nos. 90-91), on August 17, 2007. The defendants filed a brief in support of their motion to dismiss on August 21, 2007. (Doc. No. 92). On September 14, 2007, the plaintiffs filed a reply to the defendants’ opposition to summary judgment. (Doc. No. 97). This matter is now ripe for disposition. II. Applicable Law The parties disagree as to whether the court should apply New Jersey or Pennsylvania law in this case. It is well settled that in diversity actions, a federal court determines which state’s substantive law governs by applying the choice of law rules of the forum state in which it sits. Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216, 219 (3d Cir.2005) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). Pennsylvania courts generally apply a two-step analysis: “[F]irst, the court must look to see whether a false conflict exists. Then, if there is no false conflict, the court determines which state has the greater interest in the application of its law.” LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir.1996) (citing Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970)); see also Hughes v. Prudential Lines, Inc., 425 Pa.Super. 262, 624 A.2d 1063, 1066 n. 2 (Pa.Super.Ct.1993). However, where there is a contractual choice of law or forum selection clause set forth by the parties, Pennsylvania courts will enforce the contractual provision unless either (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue. Gay v. CreditInform, 511 F.3d 369, 389 (3d Cir.2007) (quoting Restatement (Second) of Conflict of Laws § 187(2)(1988));" }, { "docid": "23662443", "title": "", "text": "if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In reviewing the District Court’s grant of summary judgment, we view the facts in a light most favorable to the non-moving party. Gottshall, 56 F.3d at 533. II. Discussion A. Choice of Law The lynchpin of the District Court’s decisions on class certification and summary judgment was its determination that all of Plaintiffs’ causes of action required a showing of causation and actual injury. The District Court noted that the putative class had individualized injuries, which impeded class certification, while the individual Plaintiffs had not shown any personal injury, thereby defeating their action. We agree with the District Court that, if Plaintiffs must show causation and actual injury, they lose on both parts of their appeal. We disagree with the District Court, however, as to whether the relevant law requires a showing of causation and actual injury. The District Court’s determination that actual injury was required in all of Plaintiffs’ causes of action was not based on an analysis of any particular state’s laws, even though this is a diversity action. In a diversity action, the court “must apply the choice of law rules of the forum state to determine what substantive law will govern.” Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). This action was commenced in the United States District Court for the Western District of Pennsylvania, so the District Court properly turned to Pennsylvania’s choice of law rules. Before a choice of law question arises, there must first be a true conflict between the potentially applicable bodies of law. On Air Entm’t Corp. v. Nat’l Indem. Co., 210 F.3d 146, 149 (3d Cir.2000). If there is no conflict, then the district court sitting in diversity may refer interchangeably to the laws of the states whose laws potentially apply. Id. If there is a conflict between the potentially applicable laws, then Pennsylvania uses the “significant relationship” test of the Restatement (Second) of" }, { "docid": "20394845", "title": "", "text": "without the Consent of the Legislatures of the States concerned as well as of the Congress.”). In addition, courts have strictly construed the term “State” under section 457, reasoning that the District of Columbia is not a “State” under section 457. See Watson v. Manhattan and Bronx Surface Transit Operating Authority, 487 F.Supp. 1273, 1276 (D.N.J.1980). In light of the foregoing, the Court concludes that “State” as used in 16 U.S.C. § 457 does not refer to a nation-state or foreign country such as Iraq. Therefore, section 457 is not controlling. Accordingly, KBR’s motion for the application of Iraqi law is denied to the extent that it relies on said statute. 2. Pennsylvania Choice of Law Rules Having concluded that section 457 does not govern, the Court must turn to a traditional choice of law analysis. In determining which jurisdiction’s laws to apply to Plaintiffs’ wrongful death and survival claims, this Court applies Pennsylvania’s choice of law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In the past, Pennsylvania adhered to the principle of lex loci delicti, and applied the law of the place of the wrong in tort cases. See Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (Pa.1964). However, Pennsylvania has long since abandoned this approach. Id. Instead, Pennsylvania conflicts law has combined a “governmental interest analysis” with the Restatement (Second) of Conflicts theory, thereby adopting a “hybrid” approach. Hammersmith v. TIG Ins. Co., 480 F.3d 220, 230 (3d Cir.2007) (citing Melville v. American Home Assur. Co., 584 F.2d 1306 (3d Cir.1978) and Griffith, 416 Pa. 1, 203 A.2d 796). This approach requires the Court to first determine whether there is a relevant difference between the law of the jurisdictions whose laws potentially apply, i.e., whether there is a conflict. Hammersmith, 480 F.3d at 230. If their respective laws are the same, there is no conflict at all and the choice of law analysis ends; the law of the forum, Pennsylvania law here, would apply. Id. If the laws differ, the Court must" }, { "docid": "3321766", "title": "", "text": "determine whether to apply Pennsylvania or Maryland law to this action. Defendants assert that Maryland law should apply while Plaintiffs argue that Pennsylvania law governs. In his June 30, 2008 Memorandum Order in this matter (Docket No. 27), Judge Louis Pollack, to whom this case was previously assigned, addressed this issue concluding, “The court looks primarily to the law of Pennsylvania, because it is the forum state and appears to have a strong relationship with the agreements at issue.” The Court is mindful of the law of the case doctrine and agrees with Judge Pollack’s conclusion. In general, a federal court, sitting in a diversity action or with supplemental jurisdiction over a common law claim, must apply the choice of law rules of the forum state. See Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 497, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Berg Chilling Systems, Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir.2006). Accordingly, the Court will apply Pennsylvania choice of law rules to this dispute. Under Pennsylvania choice of law rules, the Court must first determine whether a true conflict exists. Hammersmith v. TIG Ins. Co., 480 F.3d 220, 230 (3d Cir.2007) (noting “the first part of the choice of law inquiry is best understood as determining if there is an actual or real conflict between the potentially applicable laws.”). If there is no true conflict, no further choice of law analysis is necessary and the law of Pennsylvania, as the forum state, would apply. Id. Here, as to duress, Defendants admit that “[t]he definition of duress is generally the same in every jurisdiction” and classifies the differences between Maryland and Pennsylvania duress law as merely “minor.” (Defendants’ Motion to Compel Arbitration, Docket No. 63). The Court agrees. The Court views any slight differences between Maryland and Pennsylvania duress law as immaterial to the outcome here. Similarly, there is no conflict between Maryland and Pennsylvania law in regard to unconscionability. Under Pennsylvania law “a contract or term is unconscionable, and therefore avoidable, where there was a lack of meaningful choice in the acceptance of" }, { "docid": "1935852", "title": "", "text": "of these issues in turn. A. Principles Governing Choice of Law Analysis in Pennsylvania Federal courts exercising diversity jurisdiction must apply the conflict of law rules of the forum state. On Air Entm’t Corp. v. Nat’l Indem. Co., 210 F.3d 146, 149 (3d Cir.2000) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). Therefore, Pennsylvania choice of law rules apply to this case. Pennsylvania applies “interest/contacts” methodology to choice-of-law questions. See Hammersmith, 480 F.3d at 226-27. This is a “flexible choice of law rule which weighs the interests [its] sister-states may have in the transaction.” Powers v. Lycoming Engines, 328 Fed.Appx. 121, 124 (3d Cir.2009) (quoting Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1133 (2007)). Pennsylvania’s choice-of-law analysis requires the Court to conduct a two-part inquiry: “The first level of scrutiny considers whether ‘an actual or real conflict [exists] between the potentially applicable laws.’ ” Powers, 328 Fed.Appx. at 125 (quoting Hammersmith, 480 F.3d at 230) (brackets added in Powers). “If there are relevant differences between the laws, then the court should examine the governmental policies underlying each law, and classify the conflict as a ‘true,’ ‘false,’ or an ‘unprovided-for’ situation.’ ” Hammersmith, 480 F.3d at 230. Whether a conflict is true or false depends on each jurisdiction’s interest in having its law applied. If “only one jurisdiction’s governmental interests would be impaired by the application of the other jurisdiction’s law,” then the conflict is a false one and “the court must apply the law of the state whose interests would be harmed if its law were not applied.” Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir.1991). If both jurisdiction’s governmental interests would be impaired by the application of the other jurisdiction’s law, then a “true” conflict exists. Hammersmith, 480 F.3d at 230 (citing Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854, 856 (1970)). In this situation, a deeper level of analysis is necessary. “[T]he Court must then determine which state has the ‘greater interest in the application of its law.’ ” Hammersmith, 480" }, { "docid": "3252787", "title": "", "text": "to appeal from that order and it moved, in the alternative, for reconsideration of the order. By order dated August 17, 2004, the district court granted Plaza’s motion for certification under 28 U.S.C. § 1292(b) but denied its motion for reconsideration. We granted Plaza’s petition for permission to appeal on November 4, 2004. II. DISCUSSION As we have indicated the sole question presented on appeal is a narrow conflicts-of-law issue: whether the court should use Pennsylvania common law or New York’s statutory law to determine if Plaza can be liable. We exercise plenary review over the choice of law question raised by this appeal. See Simon v. United States, 341 F.3d 193, 199 (3d Cir.2003); Shuder v. McDonald’s Corp., 859 F.2d 266, 269 (3d Cir.1988). In a diversity of citizenship action, we determine which state’s substantive law governs by applying the choice-of-law rules of the jurisdiction in which the district court sits, here Pennsylvania. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Petrella v. Kashlan, 826 F.2d 1340, 1343 (3d Cir.1987); Melville v. American Home Assur. Co., 584 F.2d 1306, 1308 (3d Cir.1978). Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), is Pennsylvania’s leading conflicts-of-laws case. In that case, the Pennsylvania Supreme Court abandoned the traditional lex loci delicti conflicts rule in which the law of the place of the wrong governed the substantive rights and liabilities of the parties and substituted “a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Id. at 805. We have indicated that this methodology has evolved into a hybrid approach that “combines the approaches of both Restatement [ (Second) of Conflict of Laws] (contacts establishing significant relationships) and ‘interest analysis’ (qualitative appraisal of the relevant States’ policies with respect to the controversy).” Melville, 584 F.2d at 1311. Under Pennsylvania law, before assessing the governmental interests of the jurisdictions whose law may control and examining their contacts with the dispute, we must determine what type of “conflict,” if any," }, { "docid": "16058814", "title": "", "text": "parol evidence rule, and in its absence, Starr Plaintiffs fail to state claims for fraud, negligent misrepresentation, civil conspiracy, and promissory estoppel. As to these Defendants, unlike the APA Majority Member Defendants, there is no claim that the Court lacks personal jurisdiction and therefore the Court proceeds to the merits. 1. Parol Evidence Rule — Choice-of-law As a preliminary matter, the Court must determine which state law governs the application of the parol evidence rule in this case. Starr Plaintiffs argue that New Jersey law applies because there is an actual conflict between the construction of the parol evidence rule under Pennsylvania and New Jersey law, and under the Pennsylvania choice-of-law analysis, New Jersey law applies. In contrast, Defendants argue that there is no actual conflict between the application of the parol evidence rule under Pennsylvania and New Jersey law, and thus the law of the forum state, Pennsylvania, governs. Where federal jurisdiction is based on diversity of citizenship, as it is here, the Court must apply the choice-of-law rules for the state in which it sits. Hammersmith v. TIG Ins. Co., 480 F.3d 220, 226 (3d Cir.2007) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). Because this Court sits in the Eastern District of Pennsylvania, Pennsylvania choice-of-law rules apply- If the parties have not agreed upon a choice of law, Pennsylvania employs a two-step process to resolve choice-of-law questions. Hammersmith, 480 F.3d at 229. First, the court must determine if there is a real conflict. Id. There is no real conflict where the application of either state’s law renders the same result. Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir.2006). If there is no difference between the laws of the forum state and those of the foreign jurisdiction, the court may bypass the choice-of-law issue, rely interchangeably on the law of both states, and presume the law of the forum state controls. Hammersmith, 480 F.3d at 229. However, if there is a conflict, the court proceeds to the second step and characterizes the conflict" }, { "docid": "15779099", "title": "", "text": "policy of Anthony Evangelista also contains an excess clause, under Pennsylvania law both policies must be treated of equal status. III. DISCUSSION A. Applicable Law In diversity actions, federal courts are to apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Under traditional Pennsylvania choice of law rules, insurance contracts are governed by the law of the state where they are made. Pennsylvania courts have determined that contracts are “made” at the place of delivery. Jamison v. Miracle Mile Rambler, Inc., 536 F.2d 560, 562 n. 1 (3d Cir.1976) (citing Crawford v. Manhattan Life Ins. Co. of N.Y., 208 Pa.Super. 150, 221 A.2d 877). Two decades ago, however, the Pennsylvania Supreme Court rejected the traditional lex loci delicti approach and adopted a hybrid version of “interest” and “significant contacts” analysis. Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). Although the Griffith court only applied the analysis to tort actions, the Third Circuit determined that the Griffith analysis applies generally to contract actions and specifically to insurance contracts. Melville v. American Home Assurance Co., 584 F.2d 1306, 1313 (3d Cir.1978). Using the Griffith approach, this court must weigh the contacts [to the respective states] on a qualitative scale according to their relation to the policies and interests underlying the [primary issues]. Shields v. Consolidated Rail Corp., 810 F.2d 397, 400 (3d Cir.1987) (citations omitted). If there were a conflict between the laws of Pennsylvania and Missouri, I would be required to examine the policies and interests of the two states as they related to each of the three issues in contention. However, because I find and the parties agree that there is no difference between the law of the Commonwealth of Pennsylvania and the law of the State of Missouri, the interests and contacts of the two states need not be addressed. B. Mark Evangelista’s Household Mark Evangelista’s USAA insurance policy entitles covered persons to claim uninsured motorist benefits. See Part C of USAA policy." }, { "docid": "1935851", "title": "", "text": "See Hammersmith v. TIG Ins. Co., 480 F.3d 220, 226-27 (3d Cir.2007) (noting that a deep choice of law analysis is only necessary under Pennsylvania choice of law rules if there is a true conflict) (citing Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854, 856 (1970)). With respect to Count Six, the consumer protection law claim, the parties agree that, although there is a true conflict between the consumer protection laws of Maine and Pennsylvania, Pennsylvania law should be applied. Accordingly, the Court need not conduct a choice-of-law analysis regarding Count Six. See Health Robotics, LLC v. Bennett, No. 09-627, 2009 WL 5033966, at *2 n. 2 (E.D.Pa. Dec. 22, 2009). Pennsylvania law will be applied to Count Six. The clash in this case concerns Count Seven — the punitive damages claim — and defendant’s affirmative defense of comparative negligence. The parties dispute whether there is a true conflict between the laws of Pennsylvania and Maine and, if so, which jurisdiction has the greater interest in having its laws applied. The Court addresses each of these issues in turn. A. Principles Governing Choice of Law Analysis in Pennsylvania Federal courts exercising diversity jurisdiction must apply the conflict of law rules of the forum state. On Air Entm’t Corp. v. Nat’l Indem. Co., 210 F.3d 146, 149 (3d Cir.2000) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). Therefore, Pennsylvania choice of law rules apply to this case. Pennsylvania applies “interest/contacts” methodology to choice-of-law questions. See Hammersmith, 480 F.3d at 226-27. This is a “flexible choice of law rule which weighs the interests [its] sister-states may have in the transaction.” Powers v. Lycoming Engines, 328 Fed.Appx. 121, 124 (3d Cir.2009) (quoting Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1133 (2007)). Pennsylvania’s choice-of-law analysis requires the Court to conduct a two-part inquiry: “The first level of scrutiny considers whether ‘an actual or real conflict [exists] between the potentially applicable laws.’ ” Powers, 328 Fed.Appx. at 125 (quoting Hammersmith, 480 F.3d at 230) (brackets added in Powers). “If there are" }, { "docid": "17597526", "title": "", "text": "TIG was not timely notified of the underlying accident and/or lawsuit, and thus DKM, the insured parent of CCC, was not entitled to coverage, absent some showing that TIG was estopped from disclaiming coverage based on its delay in doing so. In denying Hammersmith’s Motion for Partial Summary Judgment on the ground that TIG failed to disclaim coverage as soon as reasonably possible, the District Court held that TIG’s investigation of the facts and disclaimer were reasonable as a matter of law. III. Choice of Law The parties disagree as to which state law applies in this case. Hammers-mith urges Pennsylvania law, which requires an insurer to prove that the notice provision contained in the insurance contract was breached, and it suffered prejudice as a result. Brakeman v. Potomac Ins. Co., 472 Pa. 66, 371 A.2d 193 (1977). TIG maintains that the District Court correctly applied New York law, which does not require an insurer to establish prejudice in order to disclaim coverage based on late notice. Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76, 78 (1972). We exercise plenary review over the District Court’s choice of law determination. Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir.2006). Because this is a diversity case, we apply the choice-of law-rules of the forum state, Pennsylvania. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In this case, the District Judge erred in concluding it was “well-settled” that “[u]nder Pennsylvania choice of law rules, an insurance contract is governed by the law of the state in which the contract was made.” App. 13a. Although both Pennsylvania and federal courts have dealt with this issue in a rather inconsistent fashion, we think it is now clear that Pennsylvania applies the more flexible, “interest/contacts” methodology to contract choice-of-law questions. A. Abandonment of Lex Locus Con-tractus in Pennsylvania Choice-of-Law Jurisprudence Prior to 1964, Pennsylvania courts uniformly applied the law of the place of contract (“lex loci contractus”) or injury (“lex loci delicti”) in contract" }, { "docid": "14048302", "title": "", "text": "ANALYSIS A. Choice of Law Issue National cross-appeals the District Court's ruling that New Jersey law controls the case and argues that Pennsylvania law should control. Because this is a diversity case, we apply the choice of law principles of Pennsylvania, the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). The District Court applied Pennsylvania's choice of law test, which it termed \"a combination of the `most significant' test and an `interest' analysis,\" and held that New Jersey, and not Pennsylvania, law controls the case. National contends that the District Court misapplied Pennsylvania's choice of law test, and that Pennsylvania law should control the case. However, before a choice of law question arises, there must actually be a conflict between the potentially applicable bodies of law. See Lucker Mfg. v. Home Ins. Co., 23 F.3d 808, 813 (3d Cir.1994); Williams v. Stone, 109 F.3d 890, 893 (3d Cir.1997). National admits that it cannot point to any differences between Pennsylvania and New Jersey law relevant to this case. In addition, our own research has not identified any relevant differences. Under these circumstances, there is no conflict of law, and the court should avoid the choice of law question. See Lucker, 23 F.3d at 813. The court can, therefore, refer interchangeably to the laws of New Jersey and Pennsylvania in discussing the law applicable to the case. See id. B. Coverage under the Policy The District Court held that the Policy provided coverage in this case, but did not give the reasons for its ruling. On cross-appeal, National argues, among other things, that there is no coverage in this case because the Policy is an OL & T policy, a limited form of insurance which does not provide coverage for off-premises injuries. Our review of the District Court's coverage ruling is plenary. See Carey v. Employers Mut. Cas. Co., 189 F.3d 414, 417 (3d Cir.1999). National argues that OL & T policies, in contrast to broader comprehensive general liability policies, do not cover off-premises injuries such as those" }, { "docid": "13292950", "title": "", "text": "is no genuine issue of material fact, then summary judgment is proper. Id. at 322, 106 S.Ct. 2548; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.1987). III. DISCUSSION I must decide whether the release clause that Gish signed on behalf of Jo Ellen and Kyle Sandek discharges Defendants. Defendants argue that, under Pennsylvania law, the general release discharges them. However, under Georgia law, the releases signed by Gish do not discharge Defendants. As will be discussed below, pursuant to the choice of law rules of Pennsylvania, Georgia law must be applied here. As such, the releases signed on behalf of the estates of Jo Ellen and Kyle Sandek do not discharge Defendants. A. Choice of Law A federal court sitting in diversity applies the choice-of-law rules of its forum state. Klaxon v. Stentor Elec. Mfg., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir.1996). Because choice-of-law analysis is issue specific, different states’ laws may apply to different issues in a single case, a principle known as “depecage.” Berg Chilling Systems, Inc. v. Hull Corp., 435 F.3d 455, 463 (3d Cir.2006). Pennsylvania has developed a choice-of-law approach that combines the contacts analysis of the Restatement Second with the governmental interest analysis. Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir.1991)(describing Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964)). Pennsylvania’s approach to choice of law consists of two parts. LeJeune, 85 F.3d at 1071. First, the interests of the competing states must be compared to determine whether the conflict between them is “true” or “false.” Id. Second, if the conflict is “true,” the interests of the both states must be compared and the law of the state with more significant interest applied. Id. A false conflict arises when only-one jurisdiction has an interest which would be impaired by the application of another states laws and results in the application of the law of the impaired state. LeJeune, 85 F.3d at 1069. A true conflict arises when both states have interests which" }, { "docid": "23662444", "title": "", "text": "Plaintiffs’ causes of action was not based on an analysis of any particular state’s laws, even though this is a diversity action. In a diversity action, the court “must apply the choice of law rules of the forum state to determine what substantive law will govern.” Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). This action was commenced in the United States District Court for the Western District of Pennsylvania, so the District Court properly turned to Pennsylvania’s choice of law rules. Before a choice of law question arises, there must first be a true conflict between the potentially applicable bodies of law. On Air Entm’t Corp. v. Nat’l Indem. Co., 210 F.3d 146, 149 (3d Cir.2000). If there is no conflict, then the district court sitting in diversity may refer interchangeably to the laws of the states whose laws potentially apply. Id. If there is a conflict between the potentially applicable laws, then Pennsylvania uses the “significant relationship” test of the Restatement (Second) of Conflicts of Laws. Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, 801-06 (1964); Troxel v. A.I. duPont Inst., 431 Pa.Super. 464, 636 A.2d 1179, 1180-81 (1994). In this case, the District Court determined that there was no conflict of laws between Ohio, Indiana, and Pennsylvania as to the requirement of harm and thus stated that under Pennsylvania’s choice of law rules it did not need to determine which law applied. The District Court did not, however, give any consideration to Texas law. Plaintiffs did not object to the District Court’s choice of law ruling either at trial or in their original appellate briefs. Plaintiffs contended, however, that the District Court erred in requiring causation (including reliance) and actual injury as elements of their breach of fiduciary duty claims. In support of this contention, Plaintiffs cited cases from Texas and other jurisdictions. To resolve the confusion about whether actual injury is required for a breach of fiduciary duty claim, we requested letter memoranda from the parties. The letter memoranda addressed the questions" } ]

[ { "docid": "22657901", "title": "", "text": "the laws, whenever he receives an injury.” Marbury v. Madison, 1 Cranch 137, 163 (1803). Having concluded that petitioner’s complaint states a cause of action under the Fourth Amendment, supra, at 390-395, we hold that petitioner is entitled to recover „ money damages for any injuries he has suffered as a result of the agents’ violation of the Amendment. II In addition to holding that petitioner’s complaint had failed to state facts making out a cause of action, the District Court ruled that in any event respondents were' immune from liability by virtue of their official position. 276 F. Supp., at 15. This question was not passed upon by the Court of Appeals, and accordingly we do not con sider it here. The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion. So ordered. Mr. Justice Harlan, concurring in the judgment. My initial view of this case was that the Court of Appeals was correct in dismissing the complaint, but for reasons stated in this opinion I am now persuaded to the contrary. Accordingly, I join in the judgment of reversal. Petitioner alleged, in his suit in the District Court- for the Eastern District of New York, that the defendants, federal agents acting under color of federal law, subjected him to a. search and seizure contravening thé requirements of the Fourth Amendment. He sought damages in the amount of $15,000 from each of the agents. Federal jurisdiction was claimed, inter alia, under 28 U. S. C. § 1331 (a) which provides: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.” The District Court dismissed the complaint for lack of federal jurisdiction under 28 U. S. C. § 1331 (a) and failure to state a claim for which relief may be granted. 276 F. Supp 12 (EDNY 1967). On appeal, the Court of Appeals concluded, on the basis of" } ]

[ { "docid": "4011812", "title": "", "text": "Plaintiff alleges jurisdiction is established by 28 U.S.C. § 1331 and by 28 U. S.C. § 1361. § 1331(a) provides: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. This is clearly a Federal question case, arising under the Constitution and laws of the United States. While “ [i]t is difficult to understand * * * why there should ever be a monetary requirement in federal question cases,” the $10,000 requirement remains. Wright, Federal Courts § 32 (1963). It is that requirement in contest here. Although it is difficult to determine the pecuniary value of the I-S deferment to the Plaintiff, it is not so difficult that it “cannot be translated into terms of money.” Id. at § 33. Rather, the Court finds “there is a present probability that the value of the matter in controversy will exceed the jurisdictional amount.” Id. Plaintiff also pleads jurisdiction under § 1361, which provides: The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. Assuming, as we must at this point, that Plaintiff is clearly entitled to a I-S deferment, his local board has an affirmative duty to give him the classification. § 1361 gives this Court authority to compel the Board to perform that duty. Assuming arguendo that this Court would otherwise have jurisdiction under either § 1331 or § 1361 or both, the Defendants claim that the jurisdiction has been specifically denied by § 10(b) (3) of the Act, which provides in part: No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted * * * after the registrant has responded either affirmatively or negatively to an order to report for induction" }, { "docid": "22797765", "title": "", "text": "“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” See Tahoe Regional Planning Compact, 83 Stat. 360, Cal. Gov’t Code Ann. §§66800-66801 (West Supp. 1977), Nev. Rev. Stat. §§ 277.190-277.230 (1973) (hereinafter cited as Compact). Compact, Arts. Y and VI. The States of California and Nevada and the county of El Dorado were originally named as defendants but either were not properly served or have been dismissed as parties. The amount in controversy exceeds $10,000. Title 28 U. S. C. § 1331, the general federal-question jurisdiction statute, provides in part: “The district courts shall' have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency, thereof, or any officer or employee thereof in his official capacity.” Title 42 U. S. C. § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” Title 28 U. S. C. § 1343 provides in part: “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: “(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage of any right, privilege or immunity secured by the Constitution of the United States" }, { "docid": "2816965", "title": "", "text": "such sum or value would not be required. H.R.No.94-1656, 94th Cong., 2d Sess., reprinted in [1976] U.S.Code Cong. & Ad.News, 6121, 6123-24. Our analysis would end here were it not for the District Court’s reliance on a recent case from the Second Circuit, Estate of Watson v. Blumenthal, 586 F.2d 925 (2d Cir. 1978), which held that the defense of sovereign immunity under Section 1331 is not waived by the recent amendments to the APA. That Court’s view seems in conflict with the clear intent of the amendment, and is based on the faulty assumption that Section 1331 incorporates a tacit bar to all suits where the United States is a defendant, unless abrogated by an amendment to Section 1331 itself. We are thus unable to endorse the Second Circuit’s reasoning in the Blumenthal case. Accordingly, the judgment of the District Court is reversed and the case remanded for consideration of remaining issues. . 5 U.S.C. § 702 provides in part: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. . In April 1980, when appellant filed his complaint, 28 U.S.C. § 1331(a) provided: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. . Under the National Firearms Act, a maker of a “firearm” must secure the approval of the Secretary of the Treasury; have the firearm registered; pay a tax of $200 for each" }, { "docid": "2089859", "title": "", "text": "motion to dismiss on March 9, 1972 because it lacked jurisdiction over the subject matter under 28 U.S.C. §§ 1331 and 1361. The plaintiffs appealed. 28 U.S.C. § 1331(a), provides: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1361, provides: “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” JURISDICTION UNDER § 1331(a) The holding of the majority is that “We hold that on the allegations of the Complaint in this case there is jurisdiction in the District Court under 28 U.S. C. § 1361 to try the case and to thereupon consider whether or not the plaintiffs may be entitled to a Writ of Mandamus, or an injunction, or a declaratory judgment.” A footnote indicates that mandamus jurisdiction permits a flexibility in remedy. Insofar as injunctive or declaratory relief is concerned, the most recent expression of the Supreme Court is that in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), where the court said: “. . .in suits against federal officials for alleged deprivation of constitutional rights, it is necessary to satisfy the amount in controversy requirement for federal jurisdiction.” 405 U.S. 538, 547, 92 S.Ct. 1113, 1119. Although the majority opinion here notes that Lynch is “not favorable to [plaintiffs’] contentions,” the holding is in direct contradiction to the expressed command of Lynch insofar as injunctive and declaratory relief is concerned. The majority opinion here overlooks the fact that conflicts between the various circuits have been settled by Lynch, as it does a very recent decision of this court, McGaw v. Farrow, 472 F.2d 952 (4th Cir. 1973), in which we held in a remarkably similar fact situation (a chapel) arising at Fort Eustis: “There seems little doubt" }, { "docid": "7394685", "title": "", "text": "or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (emphasis added). Inasmuch as the plaintiffs are here complaining about acts done by the defendants under color of federal law rather than state law, 42 U.S.C. § 1983 does not apply. Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1346 (2d Cir. 1972); Norton v. McShane, 332 F.2d 855, 862 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274. Consequently, jurisdiction is not conferred by 28 U.S.C. § 1343(3). The jurisdictional basis for this case must be 28 U.S.C. § 1331(a), Bivens v. Six Unknown Named Agents, 403 U.S. 388, 398, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Harlen, J., concurring), which provides: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331(a). The amended complaint does not contain allegations satisfying the jurisdictional amount and was properly dismissed on that ground alone, although not raised by the parties nor mentioned as a ground by the district court in its dismissal order. Although we could permit the plaintiffs to amend their complaint in this court to allege the proper jurisdictional amount for each plaintiff, assuming that such allegations could, in good faith be made, it would be futile to do so if we ultimately concluded that the amended complaint was also properly dismissed for the ground assigned by the district court, namely lack of a substantial federal question. II The section of the Hatch Act which the plaintiffs specifically attack provides that: A State or local officer or employee may not— * * * * * * (3) take an" }, { "docid": "23075761", "title": "", "text": "error. IY. The judgment of the district court will be reversed and the case remanded for further proceedings not inconsistent with this opinion. Costs taxed against the appellees. . 28 U.S.C. § 1331(a) states: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. . The district court also considered and rejected 28 U.S.C. §§ 1343 and 1361 as possible bases for jurisdiction. In light of our conclusion that jurisdiction is conferred by 28 U.S.C. § 1331(a) we need not consider these other possible grounds for jurisdiction. . As we pointed out in Jaffee v. United States, supra, 592 F.2d at 718, “non-statutory” suits for review are so described because they are not brought under statutes that specially provide for review of agency action. Indeed review, if available at all, is through actions involving matters which arise under the Constitution, laws or treaties of the United States as provided in 28 U.S.C. § 1331(a). Id. at n.12. . The Administrative Procedure Act, 5 U.S.C. § 702 was amended in 1976 by adding the following pertinent provision: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein denied on the ground that it is against the United States or that the United States is an indispensable party. . In its brief, the Government also argues that Jaffee is distinguishable because “it did not involve an attempt to control the President in the exercise of his discretion as chief executive.” At oral argument before this court, however, the Government conceded" }, { "docid": "3335784", "title": "", "text": "a reimbursement plan based on a reasonable cost basis found it to be clearly inconsistent with section 249 of the Social Security Act. 433 F.Supp. at 1331. . HEW chose not to participate in this appeal, since in its assessment of the issues presented “the rights of the federal government are not directly at issue.” Letter of U.S. Dept, of Justice to Clerk, U.S. Court of Appeals, Fifth Circuit, dated January 30, 1979. . Pursuant to the court’s order of October 18, 1977, in the Golden Isles case, Florida submitted a plan for reimbursement of providers of services on a reasonable cost-related basis which was approved by HEW. This matter is still pending in the district court below. . 28 U.S.C. § 1251 provides: (a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States. (b) The Supreme Court shall have original but not exclusive jurisdiction of: (1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; (2) All controversies between the United States and a State; (3) All actions or proceedings by a State against the citizens of another State or against aliens. . 28 U.S.C. § 1331(a) provides: (a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. . 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." }, { "docid": "2608156", "title": "", "text": "due to the company’s purchase of pollution equipment. . 29 U.S.C. § 159(a) reads: (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment. . 28 U.S.C. § 1337 reads in part: § 1337. Commerce and antitrust regulations; amount in controversy, costs (a) The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies: Provided, however, That the district courts shall have original jurisdiction of an action brought under section 20(11) of part I of the Interstate Commerce Act (49 U.S.C. § 20(11)) or section 219 of part II of such Act (49 U.S.C. § 319), only if the matter in controversy for each receipt or bill of lading exceeds $10,000, exclusive of interest and costs. . 28 U.S.C. § 1331 reads: § 1331. Federal question; amount in controversy; costs (a) The district courts shall have original jurisdiction. of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States,- except that no such sum or value shall be required in any such action brought against the United States, any agency, thereof, or any officer or employee thereof in his official capacity. (b) Except when express provision therefor is otherwise made" }, { "docid": "684228", "title": "", "text": "pursuant to 28 U.S.C. § 1331 which states that the district courts shall have jurisdiction of all civil actions if the matter in controversy exceeds the sum or value of $10,000 exclusive of interests and costs and arises under the Constitution and laws or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any agent, officer, or employee thereof in his official capacity. Because the Plaintiffs maintain that the Defendants have violated a federal statute, 16 U.S.C. § 470f, this claim arises under the laws of the United States. The Plaintiffs have plead an amount in controversy in excess of $10,000. The Defendants’ contention that this assertion of $10,000 in damages on the part of each Plaintiff is speculative lacks merit. In Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), the Supreme Court was dealing with a similarly difficult-to-measure interest — the preservation of the purity of interstate waters. The Court declared that the considerable interest involved in the purity of interstate waters would seem to put beyond question the jurisdictional amount provided for in 28 U.S.C. § 1331(a). In Save the Courthouse Committee v. Lynn, 408 F.Supp. 1323 (S.D. N.Y.1975), the Plaintiffs contended that construction of an old courthouse deprived them of cultural and architectural interests in excess of $10,000. The Court stated that it can fairly be said that considerable interests are involved in the preservation of cultural resources and that would seem to put beyond question the jurisdictional amount provided for in § 1331(a). This Court concludes that the same result must be reached concerning the value of the Telegraph Building. The Secretary of the Interior of the United States has found that this building has sufficient architectural and historical value to warrant placing it on the National Register. Although the value of the Telegraph Building may be difficult of precise measurement, that difficulty does not make the claim non-justiciable under § 1331. The federal courts in injunction actions under §" }, { "docid": "12838806", "title": "", "text": "District of Columbia is not a “State or Territory” within the meaning of the statute. The District Court in both eases based the transfer of the actions to the Superior Court on the Carter decision. We believe that extension of the Carter case to be erroneous. Jurisdiction below was also asserted in both cases on the basis of 28 U.S.C. § 1331(a) which provides: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum of value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. The Supreme Court has held that under this provision the district courts have jurisdiction over disputes which involve alleged infringements of constitutional liberties by federal officers. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 395-396, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Bell v. Hood, 327 U.S. 678, 685, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Moreover, for the purpose of determining jurisdiction, such allegations are not to be interpreted harshly against the plaintiff: Before deciding that there is no jurisdiction, the district court must look to the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and laws of the United States. [W]here the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court but for two possible exceptions must entertain the suit. . . The previously carved out exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged [federal question] . . . appears to be immaterial ... or ... wholly insubstantial and frivolous. . In two recent cases, this court has found jurisdiction under 28 U.S.C. § 1331 (a) over alleged police misconduct in depriving citizens of rights secured to them by the Fourth and Fifth Amendments. In Sullivan v. Murphy, this court specifically found that jurisdiction to consider equitable relief from police misconduct" }, { "docid": "23075760", "title": "", "text": "v. General Motors Corp., 298 U.S. 178, 182-83, 56 S.Ct. 780, 782, 80 L.Ed. 1135 (1936), summary disposition on the merits is disfavored and the burden is on the moving party, Mortensen v. First Federal Savings & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). Thus,- a complaint will 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). In the case before us, the district court has fused the two distinct concepts and dismissed the complaint for lack of subject matter jurisdiction because it failed to state a claim. In so doing, the court in effect shifted to the plaintiffs the burden which properly was the Government’s on a motion to dismiss under Fed.R.Civ.P. 12(b)(6) and deprived the plaintiffs of the procedural safeguards to which they were entitled. Thus, the district court committed reversible error. IY. The judgment of the district court will be reversed and the case remanded for further proceedings not inconsistent with this opinion. Costs taxed against the appellees. . 28 U.S.C. § 1331(a) states: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. . The district court also considered and rejected 28 U.S.C. §§ 1343 and 1361 as possible bases for jurisdiction. In light of our conclusion that jurisdiction is conferred by 28 U.S.C. § 1331(a) we need not consider these other possible grounds for jurisdiction. . As we pointed out in Jaffee v. United States, supra, 592 F.2d at 718, “non-statutory” suits for review are so described because they are not" }, { "docid": "2608157", "title": "", "text": "arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies: Provided, however, That the district courts shall have original jurisdiction of an action brought under section 20(11) of part I of the Interstate Commerce Act (49 U.S.C. § 20(11)) or section 219 of part II of such Act (49 U.S.C. § 319), only if the matter in controversy for each receipt or bill of lading exceeds $10,000, exclusive of interest and costs. . 28 U.S.C. § 1331 reads: § 1331. Federal question; amount in controversy; costs (a) The district courts shall have original jurisdiction. of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States,- except that no such sum or value shall be required in any such action brought against the United States, any agency, thereof, or any officer or employee thereof in his official capacity. (b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff is finally adjudged to be entitled to recover less than the sum or value of $10,000, computed without regard to any setoff or counterclaim to •which the defendant may be adjudged tó be entitled, and exclusive of interests and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff. . 28 U.S.C. § 1391 reads in part: § 1391. Venue generally (a) A civil action wherein jurisdiction is-founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose. (b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law. . See also, Boyce, Fair Representation, the NLRB and the Courts, University of Pennsylvania Industrial Research Unit (1978);" }, { "docid": "9657814", "title": "", "text": "and muslim.” In the criminal trial, appellant was convicted and is presently incarcerated in the Federal Penitentiary at Leavenworth, Kansas. A motion to dismiss the complaint was filed on behalf of all the defendants and affidavits were filed in support thereof denying the allegations of the complaint and specifically denying any “dealings” by defendants with the plaintiff other than in their official capacities. An affidavit by appellant reiterated the charges. The District Court granted the motion to dismiss the complaint on the ground that the complaint failed to state a claim upon which relief could be granted. Plaintiff appealed. Preliminarily, it is clear that the District Court has jurisdiction under 28 U.S.C. See. 1331(a) which provides: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.” The hand-written complaint which contains a demand for judgment of “$10,00,0000” may be construed as containing a sufficient allegation that the matter in controversy is of a sum or value in excess of ten thousand dollars. Appellant bases his cause of action on violations of his civil rights under 42 U.S.C. §§ 1981-1983, and on violation of his “rights to a fair trial” under the Constitution. This Circuit has held that a cause of action for damages does not accrue under 42 U.S.C. §§ 1981 et seq. for an alleged violation of the Act by federal officers acting under color of federal law. Bethea v. Reid, 445 F.2d 1163 (1971). Thus, if a cause of action exists, it must be based on a violation of a constitutionally protected right of plaintiff. Subsequent to the dismissal by the District Court, the Supreme Court of the United States in an opinion by Mr. Justice Brennan held that a violation of the Fourth Amendment right to be secure against unreasonable searches and seizures gave rise to an action for damages in the federal district court against federal agents, absent a right to immunity. Bivens v. Six Unknown" }, { "docid": "23305564", "title": "", "text": "Prior to its amendment in 1976 by Pub.L.No. 94-574, § 2, 90 Stat. 2721 (1976), 28 U.S.C. § 1331 provided: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. . 28 U.S.C. § 1331 now provides: The district courts shall have origmal jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. . 28 U.S.C. § 1491 provides in pertinent part: The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. . 28 U.S.C. § 1346(a) provides in pertinent part: The district courts shall have original jurisdiction, concurrent with the Court of Claims, of: (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. . Judge Gignoux’s quotations refer to Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963) (“The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter. E. g., Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L Ed.2d 15 (1963); Malone v. Bowdoin, 369 U.S." }, { "docid": "472927", "title": "", "text": "jurisdiction upon a suit for the reasonable value of the helium which was seen by the Court as “an action in quantum meruit, whose source is state law and not federal law”). Finally, no question of “federal common law” has been presented by plaintiff in this case. The instances where federal common law has been created have been “few and restricted.” Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963). There is no Act of Congress to be construed in this action nor any Congressional policy which should control the disposition of plaintiff’s claim. In such circumstances, the court will not create federal common law to breathe jurisdictional life into plaintiff’s claim. Prescription Plan Service Corp. v. Franco, supra, 552 F.2d at 495. Accordingly, defendants’ motion to dismiss plaintiff’s complaint for lack of subject matter jurisdiction is granted. SO ORDERED. . 28 U.S.C. § 1331(a) provides: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States, except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. Although defendants have styled their motion as a motion for judgment on the pleadings under Rule 12(c), Fed.R.Civ.P., the court, pursuant to Rule 12(h)(3), Fed.R.Civ.P., will consider the motion to be one for dismissal based upon the court’s lack of subject matter jurisdiction under Rule 12(b)(1), Fed.R.Civ.P. See 5 Wright & Miller, Federal Practice and Procedure: Civil § 1367, p. 688 (1969). Accordingly, the allegations of the complaint will be construed broadly and liberally in favor of the plaintiff. Wright & Miller, supra, § 1350, p. 551. . In Count II of her complaint, plaintiff asserts “defendants have breached the contracts entered into with Speedwell by the withholding of payments due to it . . . .” In two additional counts, plaintiff asserts defendants have violated New" }, { "docid": "4943589", "title": "", "text": "for redress.” 42 U.S.C. § 1983 (1974). The “under color of state law” prerequisite of § 1983 is synonymous with the state action requirement of the Fourteenth Amendment as first explicated in Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 n. 7, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). . This section provides in pertinent part: “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.” 28 U.S.C. § 1343(3) (1976). . According to Exhibit A of the statement pursuant to Rule 9(g) by counsel for defendant, which is not disputed by plaintiff, programs administered by UCCAC during 1975-76 were: Head Start, Nutrition Program for the Elderly, Mid-Hudson Valley Legal Services (partial subsidy), Community Outreach, Statewide Senior Action Council (advocacy program for the elderly), Food Stamps Outreach Program. The first three of these were subject to special state and/or local regulations. . This section provides in relevant part: “(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.” 28 U.S.C. § 1331 (Supp.1979). . Similarly, in United States v. Orleans, 425 U.S. 818, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976) the Supreme Court held that community action agencies are not federal agencies or instrumentalities within the meaning of the Federal Tort Claims Act. . See note 3, supra." }, { "docid": "1609739", "title": "", "text": "jurisdiction permitting judicial review of agency action. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Counsel for plaintiff has failed to establish an independent jurisdictional basis for review of the decision by the Board for Correction of Naval Records, except habeas corpus jurisdiction, which is discussed below. 28 U.S.C. § 1881 28 U.S.C. § 1331(a) provides: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.” Plaintiff asserts in his complaint that his cause of action arises under the Constitution of the United States in that defendants have violated plaintiff’s right to due process under the Fifth Amendment, as well as his right to freedom from involuntary servitude under the Thirteenth Amendment. In plaintiff’s third brief he maintains that a federal question exists by virtue of the statute which created the Armed Forces Health Professions Scholarship Program, 10 U.S.C. § 2120 et seq. Plaintiff claims defendants have acted beyond their statutory authority in misrepresenting certain aspects of the scholarship program. To bring a case under 28 U.S.C. § 1331, a plaintiff must have a substantial claim founded directly on federal law. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). The Supreme Court described the conditions of a suit which may be said to “arise under” the laws of the United States. The Court said that the required federal right or immunity must be an essential element of the plaintiff’s cause of action, and that the federal controversy must be disclosed on the face of the complaint. In Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375, 1381 (10th Cir. 1978), cert. denied 441 U.S. 952, 99 S.Ct. 2182, 60 L.Ed.2d 1058 (1979), the Tenth Circuit Court" }, { "docid": "1609738", "title": "", "text": "irreparable injury in excess of $10,-000.00.... ” Congress has waived its sovereign immunity and has consented to suits against the United States in contract actions. Under the Tucker Act, the district courts have jurisdiction only for those claims under $10,000. Under 28 U.S.C. § 1491, the Court of Claims has exclusive jurisdiction of claims exceeding $10,000. See United States v. Adams, 634 F.2d 1261, 1266 (10th Cir. Nov. 10, 1980). Furthermore, although plaintiff’s complaint alleges injury in excess of $10,000, plaintiff is seeking only declaratory and injunctive relief, and not money damages. The United States Supreme Court has held that “[t]he Tucker Act empowers district courts to award damages, but not to grant injunctive or declaratory relief.” Lee v. Thornton, 420 U.S. 139, 140, 95 S.Ct. 853, 854, 43 L.Ed.2d 85 (1975). 5 U.S.C. § 701 et seq. The Administrative Procedure Act in 5 U.S.C. §§ 702-703 waives sovereign immunity against the United States in federal court for specific relief arising out of federal agency action. However, the APA does not create independent subject matter jurisdiction permitting judicial review of agency action. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Counsel for plaintiff has failed to establish an independent jurisdictional basis for review of the decision by the Board for Correction of Naval Records, except habeas corpus jurisdiction, which is discussed below. 28 U.S.C. § 1881 28 U.S.C. § 1331(a) provides: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.” Plaintiff asserts in his complaint that his cause of action arises under the Constitution of the United States in that defendants have violated plaintiff’s right to due process under the Fifth Amendment, as well as his right to freedom from involuntary servitude" }, { "docid": "23305563", "title": "", "text": "the appellees in this case. Lovallo v. Froehlke, supra, which the district court relied upon, relates to the substantive law of mandamus and, if anything, furnishes additional grounds for denying the writ on the merits if we had to reach them as Judge Gignoux’s opinion in Pingree, supra, points out; but because we need not reach the merits we do not. Judgment reversed; cause remanded with directions to the district court to dismiss the complaint on the ground of lack of subject matter jurisdiction. . Pub.L.No.86-346, § 105(b)(1), 73 Stat. 622 (1959), repealed 31 U.S.C. § 754(b), but the repeal does not affect the bonds at issue in this case. . The agents for the decedent purchased bonds of five different series with interest rates ranging from 3% to 4⅛% and maturing between 1978 and 1994. . 31 C.F.R. § 306.28(b) provides: Conditions. The bonds presented for redemption under this section must have (1) been owned by the decedent at the time of his death and (2) thereupon constituted part of his estate . . Prior to its amendment in 1976 by Pub.L.No. 94-574, § 2, 90 Stat. 2721 (1976), 28 U.S.C. § 1331 provided: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. . 28 U.S.C. § 1331 now provides: The district courts shall have origmal jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. . 28 U.S.C. § 1491 provides in pertinent part: The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress," }, { "docid": "6213846", "title": "", "text": "well removed in point of time and place from any official purpose.” Id. at 917 (Quoting the decision of the Appeals Examiner.) Like the court in Power, we find that the decision here constitutes a rare but clearly apparent abuse of discretion. Even admitting all the charges, including the erroneous use of the December 22, 1967, letter, we find that the discipline invoked is so harsh when compared with the transgressions charged that it is simply illegal. De minim-is wrongdoing is made completely disproportionate to the punishment. We reverse the judgment of the court below with instructions to reinstate appellant immediately. Judgment accordingly. . In Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Supreme Court concluded that “the APA [Administrative Procedures Act] does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.” It noted, however, that the effect of a recent amendment to 28 U.S.C. § 1331(a), which eliminates the requirement of a specified amount-in-controversy in an action against a government agency, “is to confer jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate.” Id. at 105, 97 S.Ct. at 984. Title 28 U.S.C. § 1331(a) now provides: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.” We find that pursuant to this section Albert is properly in federal court. . Because of the underlined portion of the letter, appellant was led to believe that it did not constitute disciplinary or adverse action, was not appealable, and would not constitute a part of his personnel folder. He therefore took no steps to contradict charges made in it. To his dismay and" } ]

[ { "docid": "16103615", "title": "", "text": "the grand jury is sought at the present time, well before trial, and is “essential to the preparation of the defense.” The defendant, has cited no authority construing Rule 6 which would permit revelation of testimony before grand jury, before the witness has again testified during the subsequent trial. If the defendant desires to preclude the contingency of surprise, he may obtain information concerning the expected testimony of the witness by utilizing the methods of discovery authorized under the Criminal Rules, without asking this court to order the Government to furnish what may be characterized as an extraordinary source of discovery. Since any prudent and zealous counsel would desire to preclude surprise in any judicial proceeding, this alone will not fulfill the requirement for a showing of a “particularized need”, so far in advance of trial. This Court shall adhere to the procedure established for the Third Circuit, in United States v. Bertucci, 333 F.2d 292 (1964), and subsequently approved in Dennis v. United States, 384 U.S. 855, 874, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1965), requiring that disclosure of the prior statements or testimony of a witness shall be made after the judge, during trial has conducted an in camera examination of the Grand Jury minutes for the purpose of ascertaining any inconsistencies. Although this procedure has been criticized in Dennis, nowhere is it suggested that disclosure at any time prior to trial would be authorized. The defendant’s motion for discovery of this item is denied, but without prejudice to the right to present a similar motion during trial, in accordance with United States v. Bertucci, supra. Finally, (In item Id), the defendant desires to examine the report of the Special Agent who conducted the investigation regarding his financial status, to ascertain whether any bias existed in his recommendation of criminal prosecution, since the defendant has been designated by the Organized Crime and Racketeering Section of the United States Department of Justice as having a possible affiliation with organized criminal activity in the United States. In Lenske v. United States, 383 F.2d 20 (9th Cir.), a conviction for income" } ]

[ { "docid": "22686572", "title": "", "text": "objected to use of his testimony at the first trial on the ground that they had not been permitted to examine, or to have the trial judge examine, the transcript of his grand jury testimony. Since the omission to require production of Mason’s grand jury testimony with a view to impeachment can no longer be remedied, his trial testimony, under our holding herein, is no longer available to the Government in the event petitioners are retried. Because there had been no request for in camera judicial inspection of the grand jury minutes, the Court in Pittsburgh Plate Glass did not pass upon the adequacy of that technique for protecting a defendant’s interests. 360 U. S., at 401. See, e. g., United States v. Remington, 191 F. 2d 246, 250-251 (C. A. 2d Cir. 1951), cert. denied, 343 U. S. 907 (defendant charged with commission of perjury before the grand jury); Atlantic City Electric Co. v. A. B. Chance Co., 313 F. 2d 431 (C. A. 2d Cir. 1963) (use by private plaintiff in antitrust suit of witness’ grand jury testimony); and cases cited in note 21, infra. 18 U. S. C. §3500 (b) (1964 ed.) reads in part: “After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement ... of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. . . .” Subsection (e) defines “statement” for purposes of the Act. See, e. g., the Amendments to Rule 16 of the Federal Rules of Criminal Procedure, approved by this Court on February 28, 1966, and transmitted to Congress, which authorize discovery and inspection of a defendant’s own statements, the results of various tests, and the recorded testimony of the defendant before, the grand jury (and see the Advisory Committee’s Note thereon). See also, cases anticipating this broadening of criminal discovery: for example, Cicenia v. Lagay, 357 U. S. 504, 511; United States v. Peace, 16 F. R. D." }, { "docid": "14866176", "title": "", "text": "Exculpatory Facts Citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Mr. Brodson has filed a motion for disclosure of exculpatory facts. He also seeks “any facts known to the government tending to impair the credibility of its witnesses, including but not limited to the substance of any agreement reached or discussed between attorneys for the government and attorneys for such witnesses.” In response to such motion, the government states that “it has made available all requested discovery material and is aware of its continuing burden under Brady. Further, the government is aware of its obligation to make available to defense counsel statements of witnesses at time of trial. Title 18 United States Code, Section 3500.” The defendants remain free to challenge the credibility of the government’s witnesses upon cross-examination. Under these circumstances, I conclude that the defendant Brodson’s motion for disclosure of exculpatory facts should be denied. D. Motion for Discovery and Inspection The defendant Brodson seeks discovery of the defendants’ recorded statements, the results of scientific tests, “warrants”, the defendants' grand jury testimony and the physical evidence to be introduced at trial. The government indicates that “all such material, with the exception of grand jury testimony, is contained in the government’s file, which has been open for inspection by defendants since the return of the indictment in this ease. Grand jury testimony of defendant Brodson is available for inspection and copying by the individual who testified.\" Under these circumstances, I conclude that the defendant Brodson’s motion for discovery and inspection should be denied. E. Motion for Disclosure of Electronic Surveillance Pursuant to 18 U.S.C. §§ 2515 and 2518(8) (d), and Rule 16(a), Federal Rules of Criminal Procedure, Mr. Brodson has filed a blanket motion for disclosure of all electronic surveillance of him, persons acting on his behalf and his attorneys. The government correctly notes that unless Mr. Brodson’s counsel can in some fashion document his suspicions that the government has been listening in on his telephones, the government" }, { "docid": "976430", "title": "", "text": "prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subperia, discovery, or inspection until said witness has testified on direct examination in the trial of the case.” In Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 398, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959), the Supreme Court made clear that the Jencks Act has no relevancy to an accused’s request for grand jury minutes. The Court there said: “It appears to us clear that Jencks v. United States, supra, is in nowise controlling here. It had nothing to do with grand jury proceedings and its language was not intended to encompass grand jury minutes. Likewise, it is equally clear that Congress intended to exclude those minutes from the operation of the so-called Jencks Act, 71 Stat. 595, 18 U.S.C. (Supp. V, 1958) § 3500.” To comply with the Jencks Act and wait until a government witness has completed his direct examination before obtaining that witness’ grand jury testimony would aid little, if any, in the preparation for trial. I read Dennis as holding that under facts such as we have here the desired transcript should be made available at a time when it will assist in such preparation. The majority observes that “no request for grand jury testimony was ever made at the trial for the purpose of cross-examination of government witnesses.” The District Judge had already denied the request and, as set out above, the Jencks Act has no application. I fail to see the importance of the time of the request, unless it be that the government should be allowed to keep secret this important material until the eleventh hour, thus to gain advantage over the defense. No other reason is discernible. Notwithstanding a contrary contention of the majority, I consider that I propose no new general rule. Neither does the ruling I suggest collide with any previous decision dealing with the special facts that are present here. I consider that my view comports with the statement of Dennis that: “These developments are entirely consonant with" }, { "docid": "22925620", "title": "", "text": "Co., 356 U.S. 677, 681, 78 S.Ct. 983, 2 L.Ed.2d 1077.”, permits and commands a discrete and limited disclosure of grand jury minutes upon a showing of “particularized need” and recognized that the use of a grand jury transcript at the trial to impeach a witness or to refresh his recollection or to test his credibility are “ ‘cases of particularized need * * *384 U.S. 870, 86 S.Ct. 1840. The motion to produce the grand jury transcript in the Dennis case was made at the conclusion of the direct examination of the trial witnesses. The defendants in the case at bar, however, did not desire the production of Riley’s grand jury testimony at that time but sought to secure it in a pretrial motion for discovery. We do not think Dennis commands the disclosure of a witness’s grand jury testimony prior to the time of his testimony at trial. The Court refused in United States v. Proctor & Gamble Co., supra, to permit pretrial disclosure of an entire grand jury transcript in a civil case. Obviously a grand jury transcript if used at all on a hostile witness, would be used to impeach the witness or to test his credibility. This can be done at the time the witness has concluded his direct examination, and as a practical matter the grand jury transcript should be produced at the time of the direct examination so that defense counsel would have the transcript while the witness is testifying and is available for cross-examination. It is apparent that defendants knew this and did not desire the grand jury transcript at that time. Notwithstanding such knowledge, the defendants forewent the opportunity set forth in Dennis and embraced in the principle of § 3500 of Title 18, U.S.C. relating to statements, to make a proper request for the grand jury minutes, preferring to stand on their pretrial discovery requests. The Second Circuit, considering the import of Dennis on its disclosure procedures, in United States v. Youngblood, 379 F.2d 365, 369 (2 Cir. 1967) held that grand jury minutes should be made available to a" }, { "docid": "8118772", "title": "", "text": "ferret out inconsistencies in a lengthy transcript; he may not be able readily to absorb and evaluate every nuance in an extensive transcript. A further objection is that imposing this task on the Judge as regular procedure would draw him too deeply into the partisan task of preparing the cross-examination. From time to time instances may arise in which it will appear to the Judge wise and just to read the transcript to check a particular point sharply in issue, but the minute examination, during the trial of elaborate grand jury minutes should not be expected of him. After all, what we are dealing with is a problem of the fair scope of cross-examination, and the sound judicial discretion of the trial judge must be the chief guide. When the subject matter is one as delicate as grand jury testimony, no fixed rule can be formulated. The Judge should not be compelled to inspect in all eases; neither should he indiscriminately refuse, but he should exercise his judgment according to the circumstances. Certainly we could not approve any rule, such as contended for by the defendants here, requiring the automatic delivery of grand jury transcripts to defendants on demand. The judgment is Affirmed. . “Sec. 3500. Demands for production of statements and reports of witnesses “(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case. “(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of" }, { "docid": "22925619", "title": "", "text": "INSPECTION OF THE GRAND JURY MINUTES PRIOR TO TRIAL The defendants moved, before trial, for an order authorizing them to inspect the grand jury minutes or, in the alternative, for the Court to inspect the minutes. Although various reasons were advanced by defendants in support of their reasons for production, the principal argument made was that the minutes were necessary to test the credibility of the principal Government witness, Riley, and to check on inconsistent testimony and statements made by Riley. Defen dants were aware of the statements made by Riley, and had reason to believe that his testimony before the grand jury was inconsistent with these statements. Defendants assert that they made a showing of particularized need sufficient to bring the need for Riley’s grand jury testimony within the purview of Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). In Dennis the Court, while recognizing the “ ‘long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts.’ United States v. Proctor & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 2 L.Ed.2d 1077.”, permits and commands a discrete and limited disclosure of grand jury minutes upon a showing of “particularized need” and recognized that the use of a grand jury transcript at the trial to impeach a witness or to refresh his recollection or to test his credibility are “ ‘cases of particularized need * * *384 U.S. 870, 86 S.Ct. 1840. The motion to produce the grand jury transcript in the Dennis case was made at the conclusion of the direct examination of the trial witnesses. The defendants in the case at bar, however, did not desire the production of Riley’s grand jury testimony at that time but sought to secure it in a pretrial motion for discovery. We do not think Dennis commands the disclosure of a witness’s grand jury testimony prior to the time of his testimony at trial. The Court refused in United States v. Proctor & Gamble Co., supra, to permit pretrial disclosure of an entire grand jury transcript in a civil" }, { "docid": "20543114", "title": "", "text": "(10th Cir. 1968); United States v. Chase, 372 F.2d 453, 466 (4th Cir. 1967). Rule 16(b) provides: “ * * * this rule does not authorize the discovery or inspection of * * * statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in 18 U.S.C. 3500.” Under 18 U.S.C. § 3500(a) no statement need be produced until after the government witness has testified. Palermo v. United States, 360 U.S. 343, 349, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). There is no reason to believe that co-defendants will not swap their own statements and testimony given before the grand jury. Indeed, defendant Kavanaugh, in his motion for severance, quotes from the grand jury testimony of one of his co-defendants. A request by one co-defendant for the statement of his other co-defendants was refused in United States v. Edwards, 42 F.R.D. 605 (S.D.N.Y.1967). The defendants are asking for a transcript of all testimony taken before the grand jury, especially that of co-conspirator Glennon. The government opposes such a request. This presents a particularly difficult question involving the traditional secrecy of the grand jury versus the liberalized tendency of discovery in criminal procedure. There is a complexing split of authorities, not only in the several circuits but even in the Fifth Circuit, over whether a defendant need show only that such a request is “material to the preparation of the defense” or whether the defendant must show a “particularized need” for the grand jury transcript. At this point, it must be remembered that each co-defendant has been given a copy of his own testimony.before the grand jury. The latest Supreme Court case in this area is Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), which held that an acccused, after showing a particularized need, is entitled to examine the grand jury minutes relating to trial testimony of government witnesses while these witnesses are available for cross examination. The Court in Dennis relied on United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60" }, { "docid": "22925624", "title": "", "text": "the subject matter of the testimony is deliverable on timely motion by the defense. Rule 16, Fed.R.Crim.P., “Discovery and Inspection,” subsection (b) expressly limits the availability of witnesses’ statements to 18 U.S.C. § 3500 procedures. It was not until 1966 that the Federal Rules of Criminal Procedure were amended to permit the defendant in his discovery operations to secure his recorded testimony before a grand jury upon his specific request. Rule 16(a) (3). These provisions represent Congressional intent and Judicial pronouncements on the scope of allowable pretrial discovery and inspection of witnesses’ statements and cannot be lightly disregarded in a consideration of the issue at hand. For what the defendants in the case at bar seek is an extension of existing case law to allow an extraordinary means of pretrial discovery. United States v. Jaskiewicz, 272 F.Supp. 214, 216 (E.D.Pa.1967). Under the showing made by defendants, the granting of the motion for inspection of grand jury minutes prior to trial would be necessitated when a defendant merely alleged he had reason to believe that a Government witness presented testimony before the grand jury which was inconsistent with other statements the witness may have made. Such a rule would be neither desirable nor consonant with the interests of justice. While intensive cross-examination, including impeachment, of the testimony of a witness at trial is a proper and salutary trial practice utilized in ascertaining the truth or falsity of a witness’s testimony, what a Government witness will testify at the trial, or if indeed he will be called to testify at all, is not known prior to trial. Where production of grand jury minutes is sought on the basis that they are needed for impeachment purposes or to test the credibility of a witness it would seem to us that the proper time for such a motion is at the time the witness testifies at trial, upon a showing of particularized need for inspection. A proper and timely request would make the minutes available for cross-examination to test the witness’s credibility and for impeachment purposes. Dennis v. United States, supra; National Dairy Products" }, { "docid": "3280369", "title": "", "text": "witnesses at a pretrial suppression hearing. The cases have construed “in the trial of the case” literally, and thus as not encompassing a suppression hearing. See U. S. v. Spagnuolo (9th Cir. 1975) 515 F.2d 818. However that may be in general, the government has failed to recognize that the first motion is directed to notes relating to a statement made by a defendant, and thus requires a somewhat different analysis from that conducted when other evidence is involved. In summary, the government asserts that the defendants have failed to jump two hurdles in attempting to obtain their own statements: What in general may be called a § 3500 subsection “a” hurdle (no discovery of material specified in subsection “a” until after testimony “at trial”), and a subsection “e” hurdle (a restrictive definition of “statement” which precludes discovery because the notes do not fall within the definition). Accordingly, they argue the notes would not be discoverable at all. Under the present facts defendant is entitled to present discovery, and need not satisfy “e’s” restricted description of a statement. 1. Delayed Discovery The language of § 3500(a) specifically provides “. . .no statement . in the possession of the United States which was made by a Government witness or prospective Government witness (other than defendant) shall be subject to subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.” (Emphasis added.) 18 U.S.C. § 3500. Thus, by its own terms the statements of a defendant are not within the delayed discovery provisions of the statute, and we must look elsewhere for resolution of the issue. In this case as our local rules provide, a motion for discovery was made before the Magistrate. Request number one was for “all statements, admissions, remarks or utterances, of whatever nature, alleged by any person to have been made by the above-named defendant . . .”. In response the Magistrate granted discovery of all material discoverable under Federal Rule of Criminal Procedure 16. Rule 16, in turn, specifically provides “Upon request the government shall permit the defendant to" }, { "docid": "22925623", "title": "", "text": "668 (2 Cir.1959), cited by defendants as expressing their “feeling”, it is stated: “Our standards of fair play in federal criminal proceedings require that the government should present its evidence in its true colors and that it should never be a party to withholding any evidence which materially bears on the credibility of a witness it places on the stand.” Defendants, however, omit quoting the language immediately following that above quoted: “Thus it would seem to be better practice, and a saving of considerable time to all concerned, in cases such as this, where there are obvious discrepancies on material matters, for the government to make such grand jury minutes available to the defense at the end of the direct examination.” Although grand jury minutes are not encompassed by the “Jeneks Act,” 18 U. S.C. § 3500, that Act directs that statements of Government witnesses are not available to the defense until the witness has testified on direct examination in the trial of the case, and only that portion of the statement that relates to the subject matter of the testimony is deliverable on timely motion by the defense. Rule 16, Fed.R.Crim.P., “Discovery and Inspection,” subsection (b) expressly limits the availability of witnesses’ statements to 18 U.S.C. § 3500 procedures. It was not until 1966 that the Federal Rules of Criminal Procedure were amended to permit the defendant in his discovery operations to secure his recorded testimony before a grand jury upon his specific request. Rule 16(a) (3). These provisions represent Congressional intent and Judicial pronouncements on the scope of allowable pretrial discovery and inspection of witnesses’ statements and cannot be lightly disregarded in a consideration of the issue at hand. For what the defendants in the case at bar seek is an extension of existing case law to allow an extraordinary means of pretrial discovery. United States v. Jaskiewicz, 272 F.Supp. 214, 216 (E.D.Pa.1967). Under the showing made by defendants, the granting of the motion for inspection of grand jury minutes prior to trial would be necessitated when a defendant merely alleged he had reason to believe that a" }, { "docid": "21040400", "title": "", "text": "Advisory Committee on 1944 Amendments to Federal Rules of Criminal Procedure, Fed. R.Crim.P. Rule 16. Rule 16(a)(2) also states that Rule 16 does not \"authorize the discovery or inspection of statements made by government witnesses or prospective government witnesses, except as provided in 18 U.S.C. § 3500.” Section 3500, known as the Jencks Act, the substance of which was incorporated into Fed.R.Crim.P. 26.2 in 1979, provides that no statement of a government witness shall be the subject of discovery until said witness has testified on direct examination in the trial of the case. 18 U.S.C. § 3500(a). (For ease of discussion, we refer to Rule 26.2 as the Jencks Act orJencIcs.) \"Statement” is a defined term that includes grand jury transcripts. 18 U.S.C. § 3500(e)(3). Accordingly, Rule 16(a)(2) makes clear that the grand jury transcripts were not discoverable under Rule 16(a)(1)(C). Two additional rules support the fact that grand jury transcripts are not subject to Rule 16(a)(1)(C) discovery. First, Rule 16(a)(3), after laying out exceptions not relevant to our case, states that Rule 16 \"does not relate to discovery or inspection of recorded proceedings of a grand jury.” Second, Rule 6(e) generally requires that the grand jury proceedings remain secret. Although Rule 6(e) provides exceptions to secrecy, no exception is applicable to this case. . Jordan asked for these Jencks Act statements in both his Request for Disclosure and his First Amendment to Request for Disclosure, which he served on the Government on July 31. . In response to defense counsel’s suggestion that since the Government had already permitted the defense to read and make notes of the grand jury testimony and the 302s, the Government ought to produce hard copies of the materials, the prosecutor said the following: [W]hy don't we make hard copies? Well, our office policy is we don’t. And the reason we don't is because in cases in the past copies of FBI 302s and Grand Jury testimony have somehow gotten out and floated around the communities, and people have taken them and gone to witnesses and said look what we've got. .. . We don't" }, { "docid": "5291446", "title": "", "text": "have testified before the grand jury”; and that “[the witness’] statements might have supported [the defendant’s] defense.” Id. at 85 (quoting United States v. LeRoy, 687 F.2d 610, 619 (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983)). In this case as well, the government has provided defendants with the names of the grand jury witnesses who might have given exculpatory testimony, and hence the government has fulfilled its Brady obligations. Similarly, Rule 16 does not provide a basis upon which this court can instruct the government to turn over the grand jury testimony of the witnesses identified in the government’s letter. This Rule specifically states that the discovery provisions of the Rule “do not relate to discovery or inspection of recorded proceedings of a grand jury.” Fed.R.Crim.P. 16(a)(3). Discovery of grand jury testimony is governed by Rule 6 (providing a general rule of secrecy for grand jury proceedings). The Supreme Court has stated that, Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed. Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979). Defendants have made no such showing here. Finally, Rules 12(i) and 26.2 of the Federal Rules of Criminal Procedure (dealing with the production of witness statements at suppression hearings and at trial), are not applicable here. The grand jury testimony will be available to defendants if that witness testifies under 18 U.S.C. § 3500. 2. Impeachment Materials The government acknowledges its obligation to produce impeachment material of its witnesses pursuant to Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Brady, but contends that it need only produce such material “sufficiently in advance of the witness’ testimony so as not to result in any delays at trial.” Gov’t’s Mem. at 19. In" }, { "docid": "22925621", "title": "", "text": "case. Obviously a grand jury transcript if used at all on a hostile witness, would be used to impeach the witness or to test his credibility. This can be done at the time the witness has concluded his direct examination, and as a practical matter the grand jury transcript should be produced at the time of the direct examination so that defense counsel would have the transcript while the witness is testifying and is available for cross-examination. It is apparent that defendants knew this and did not desire the grand jury transcript at that time. Notwithstanding such knowledge, the defendants forewent the opportunity set forth in Dennis and embraced in the principle of § 3500 of Title 18, U.S.C. relating to statements, to make a proper request for the grand jury minutes, preferring to stand on their pretrial discovery requests. The Second Circuit, considering the import of Dennis on its disclosure procedures, in United States v. Youngblood, 379 F.2d 365, 369 (2 Cir. 1967) held that grand jury minutes should be made available to a defendant for impeachment purposes after a witness has testified against him at trial, disclosure being limited to that portion of the witness’s grand jury testimony which was the subject of direct examination at the trial. In Cargill v. United States, 381 F.2d 849, 851-852 (10 Cir.1967) the Court considered Dennis as requiring the defense to be furnished the grand jury transcript of the witness’s testimony when the jury’s functions are ended, and when the request is made during the course of trial and is necessary for cross-examining the witness for the purpose of impeachment, to refresh his recollection, or to test his credibility. Defendant’s pretrial request for the production of the grand jury testimony of Government witnesses, including a principal witness, was denied: “The request was based only on the assertion of the appellant that such disclosure would serve the ends of justice or aid in the preparation for trial. These requests were much too broad and do not come within the Dennis rule.” 381 F.2d 853. In United States v. Zborowski, 271 F.2d 661," }, { "docid": "16408569", "title": "", "text": "four government witnesses for examination. All four of the witnesses testified at the first trial; three of the four witnesses testified at the second trial. The Supreme Court noted that there was no justification for relying on the assumption of the Court of Appeals that it is “safe to assume” no inconsistencies would have come to light if the grand jury testimony had been examined [384 U.S. at 874, 86 S.Ct. 1840], and held that petitioners were entitled to examine the related grand jury minutes and to do so while those witnesses were available for cross-examination. The distinction between Dennis and the present case is clearly that Knapton and Morgan never testified at trial. Defense Inspection of Intra-Agency Communications Appellants claim that intraagency communications might have shown that the F.H.A.’s attitude in pursuing the prosecution was one of bias and that it was error not to permit inspection of such communications. While “the determination of what may be useful to the defense can properly and effectively be made only by an advocate,” [Dennis v. United States, supra at 875, 86 S.Ct. at 1851] the materials upon which such a determination is sought to be made must in the first instance be discoverable, a prerequisite absent in this case. Federal Rules of Criminal Procedure, Rule 16(b) provides in part that the discovery authorized by Rule 16 “does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case * * *.” There are two exceptions. The first is the authorization of inspection of any relevant results or reports of physical or mental examinations, scientific tests or experiments made in connection with the particular case. The second relates to the right in a criminal prosecution to inspect a statement or report in the possession of the United States which was made- by a government witness or prospective government witness after said witness has testified on direct examination in the trial of the case. 18 U.S.C. § 3500. Neither exception is applicable in the present case." }, { "docid": "22545129", "title": "", "text": "U. S. 657, we said that it offers no protection to permit a defendant to obtain inconsistent statements to impeach a witness unless he may inspect statements to determine if in fact they are inconsistent with the trial testimony. We said in Jencks: “Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense. The occasion for determining a conflict cannot arise until after the witness has testified, and unless he admits conflict, as in Gordon, [Gordon v. United States, 344 U. S. 414] the accused is helpless to know or discover conflict without inspecting the reports. A requirement of a showing of conflict would be clearly .incompatible with our standards for the administration of criminal justice in the federal courts and must therefore, be rejected.” 353 U. S., at 667-668. The considerations which moved us to lay down this principle as to prior statements of government witnesses ■made to government agents obviously apply with equal force to the grand jury testimony of a government witness. For the defense will rarely be able to lay a foundation for. obtaining grand jury testimony by showing it is inconsistent with trial testimony unless it can inspect the grand jury testimony, and, apparently in recognition of this fact, the Court holds today that a preliminary showing of inconsistency by the defense would not be necessary in order for it to obtain access to relevant grand jury minutes. It is suggested by the Government, however, that rather than permit the defense to inspect the relevant grand jury minutes for possible use on cross-examination, the trial judge should inspect them and turn over to the defense only those portions, if any, that the judge considers would be useful for purposes of impeachment. This procedure has sometimes been utilized in the past as a way to limit discovery of grand jury minutes. See United States v. Alper, 156 F. 2d 222; United States v. Consolidated Laundries, 159 F. Supp. 860. But we pointed out in Jencks the serious disadvantages of such" }, { "docid": "8552499", "title": "", "text": "Here, defendant has made absolutely no showing that the extensive publicity to which defendant’s pleadings refer had any adverse effect upon the grand jury which was sitting to consider this case. Accordingly, defendant’s motion to dismiss the indictment on the ground of adverse publicity, or in the alternative for leave to inspect the grand jury transcript will be denied. (3) Motion for Production and Inspection of the Grand Jury Minutes. Further, for the reasons stated above and in view of the numerous precedents supporting nondisclosure which set forth the traditional reasons advanced for preserving the grand jury secrecy, the defendant’s separate motion for production and inspection of the grand jury minutes will also be denied. Defendant has also sought leave to examine the grand jury testimony of the witnesses on whom the Government will rely at trial. Normally, grand jury testimony is producible only upon a showing of “particularized need.” Pittsburgh Plate Glass Co. v. United States, supra. As the Supreme Court indicated in Proctor & Gamble, supra, and reaffirmed in Dennis, supra, the need for a full and fair cross-examination may provide the necessary “particularized need.” In the present case, after these witnesses have testified at trial, the Court will make their grand jury testimony available to defense counsel and provide an adequate opportunity for him to study such testimony in preparation for cross-examination. (4) Motion for Discovery and Inspection Pursuant to Rules 16 and 17 (c), Federal Rules of Criminal Procedure. Pursuant to these rules, the defense seeks discovery of twenty-one items, of which the Government has furnished items one through eighteen. Thus, the areas in dispute are items nineteen, twenty, and ^twenty-one. Amended Rule 16 of the Federal Rules of Criminal Procedure became applicable on July 1, 1966. The pertinent portion of this Rule, as amended, reads as follows: “(a) Defendant’s Statements; Reports of Examinations and Tests; Defendant’s Grand Jury Testimony. Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the" }, { "docid": "19812685", "title": "", "text": "or when permitted by the court at-the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.” Thus, pre-trial discovery of the testimony of a witness is permissible when it relates to the dismissal of the indictment or upon a showing of substantial likelihood of gross or prejudicial irregularities in the conduct of the grand jury. United States v. Budzanoski, supra at 454. These are instances in which the general requirement that a “particularized need” for the grand jury testimony be demonstrated by the defendant is satisfied. Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). The Court believes Collitt has failed to demonstrate any particularized need for the grand jury transcripts. His argument that he has been deprived of the opportunity to ascertain the basis of the charges against him and that he is unable to determine whether there was probable cause for his arrest, since he was not given a preliminary hearing, is a general broadside attack against grand jury secrecy and the indictment system. It is not a specific and factually based showing of á need particularly related to the defense of his case. The desire to inspect the transcripts now for possible use as an impeachment tool at trial is an unjustified attempt to obtain “an extraordinary source of discovery.” United States v. Jaskiewicz, 272 F.Supp. 214, 216 (E.D.Pa. 1967). Pretrial inspection of the testimony of all witnesses before the grand jury, some or all of whom may never testify at trial, is not justified by any particularized need. Disclosure of state grand jury transcripts in a federal prosecution is controlled by the Jencks Act, 18 U.S.C. § 3500. That statute prohibits the subpoena, discovery or inspection of the statement of a prospective Government witness, which is in the possession of the United States, “until said witness has testified on direct examination in the trial of the case.” Collitt’s motion to inspect the state grand jury transcripts is, thus, premature. For the above-stated reasons," }, { "docid": "22925625", "title": "", "text": "Government witness presented testimony before the grand jury which was inconsistent with other statements the witness may have made. Such a rule would be neither desirable nor consonant with the interests of justice. While intensive cross-examination, including impeachment, of the testimony of a witness at trial is a proper and salutary trial practice utilized in ascertaining the truth or falsity of a witness’s testimony, what a Government witness will testify at the trial, or if indeed he will be called to testify at all, is not known prior to trial. Where production of grand jury minutes is sought on the basis that they are needed for impeachment purposes or to test the credibility of a witness it would seem to us that the proper time for such a motion is at the time the witness testifies at trial, upon a showing of particularized need for inspection. A proper and timely request would make the minutes available for cross-examination to test the witness’s credibility and for impeachment purposes. Dennis v. United States, supra; National Dairy Products Corporation v. United States, 384 F.2d 457, 462 (8 Cir.1967). A timely request was not made here. This request should have been made during or after the direct examination of the witness. II. THE MOTIONS TO SUPPRESS THE EVIDENCE Defendants argue that the places searched and the items seized were inadequately described in the application and search warrant and that the Court erred in not holding the warrant invalid and the items seized suppressed. Defendants first note that although the Government had available to it the serial numbers of the money it was searching for, the serial numbers were not set out in the warrant. Second, defendants urge that a portion of the money seized was taken from 1419a North Park Place, which is an entirely separate apartment from 1419 North-Park Place which was described in the warrant. Further, defendant Meyer is not mentioned by name, and a portion of the money was taken from her premises at 1421 North Park Place. The affidavit and search warrant, entitled “United States of America vs. Harold Hanger”," }, { "docid": "19812686", "title": "", "text": "hearing, is a general broadside attack against grand jury secrecy and the indictment system. It is not a specific and factually based showing of á need particularly related to the defense of his case. The desire to inspect the transcripts now for possible use as an impeachment tool at trial is an unjustified attempt to obtain “an extraordinary source of discovery.” United States v. Jaskiewicz, 272 F.Supp. 214, 216 (E.D.Pa. 1967). Pretrial inspection of the testimony of all witnesses before the grand jury, some or all of whom may never testify at trial, is not justified by any particularized need. Disclosure of state grand jury transcripts in a federal prosecution is controlled by the Jencks Act, 18 U.S.C. § 3500. That statute prohibits the subpoena, discovery or inspection of the statement of a prospective Government witness, which is in the possession of the United States, “until said witness has testified on direct examination in the trial of the case.” Collitt’s motion to inspect the state grand jury transcripts is, thus, premature. For the above-stated reasons, Collitt's motion for inspection of the grand jury notes of testimony will be denied. An appropriate Order will be entered. . We can really only assume that this is Collitt’s argument. In violation of Local Criminal Rule 11 of this District, which clearly states that “[a\\ll motions . . . shall be accompanied by a brief or memorandum of law . . . ” (emphasis added), counsel has failed to provide the Court with anything more than the bare contentions con-tamed in Collitt’s motions in support of tlieir conclusions. While we impose no sanction in the present ease, this Court wishes to emphasize that non-compliance with any Local Rule is a practice to be strongly condemned and one which will be penalized if the circumstances warrant such action. . Despite the Third Circuit’s citation, in Budzanoski, of United States v. Hughes, 413 F.2d 1244 (5th Cir. 1969), vacated as moot suh nom. United States v. Gifford-Hill-American, Inc., 397 U.S. 93, 90 S.Ct. 817, 25 L.Ed.2d 77 (1970), we believe the showing of a “particularized need”" }, { "docid": "23299547", "title": "", "text": "existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and (3) recorded testimony of the defendant before a grand jury. . Prior to the 1966 amendment to the rule adding subsection (a), the defendant had no explicit right to discover his statements prior to trial and the extent of permissible disclosure was the source of considerable controversy. See Notes of Advisory Committee, 39 F.R.D. 175-176; Kaufman, Criminal Discovery and Inspection of the Defendant’s Own Statements in the Federal Courts, 57 Colum. L.Rev. 1113 (1957). . The disclosure of recorded statements made by persons other than the defendant is governed by Rule 16(b) Fed.R.Crim.P. which provides: Other Boohs, Papers, Documents, Tangible Objects or Places. Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, upon a showing of materiality to the preparation of his defense and that the request is reasonable. Except as provided in subdivision (a) (2) , this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses (other than' the defendant) to agents of the government except as provided in 18 U.S.C. § 3500. Judge Weinstein placed great reliance on the reference to 18 U.S.C. § 3500 in Rule 16 (b) and the omission of any reference to that section in Rule 16(a). Accordingly, he concluded that Rule 16(a) is not limited by the Jencks Act. Judge Weinstein was in error since Rule 16(b) clearly indicates that the Jencks Act is not modified in any respect by Rule 16. The use of the word “rule”, rather than “subdivision” in the language of 16 (b) suggests that no provision of Rule 16 was intended to alter the Jencks" } ]

[ { "docid": "22553349", "title": "", "text": "that it cannot be sold, transferred, or mortgaged to bona fide purchasers for a valuable consideration, except subject to the liability of- being appropriated to pay that indebtedness. Such a doctrine has no existence.” In the case of Hawkins v. Glenn, 131 U. S. 319, 332, which wa$ an action brought by the trustee of a corporation against certain of its stockholders to recover unpaid subscriptions, and in which the defence of the statute of limitations was pleaded, Chief Justice Fuller referred to this matter in these words: “Unpaid subscriptions are assets, but have frequently been treated by courts of equity as if impressed with a 'trust sub modo, upon the view that, the corporation being insolvent, the existence of creditors subjects these liabilities to the rules applicable to funds to be accounted for as held in trust, and that, therefore, statutes of limitation do not commence to run in respect to them until the retention of the money has become adverse by a refusal to pay upon due requisition”’ These cases negative the idea of any direct trust or lien attaching to the property of a corporation in favor of its creditors, and at the same time are entirely consistent with those cases in which the assets of a corporation are spoken of as a trust fund; using the term in the sense that we have said it was used. The same idea of equitable lien and trust exists to some extent in the .case of partnership property. Whenever, a partnership becoming insolvent, a court of equity takes possession of its property, it recognizes the fact that in equity the partnership creditors have a right to payment out of those-funds in preference to individual creditors, as, well as superior to any claims of the partners themselves. And the partnership-property is, therefore, sometimes said, not inaptly, to be held in trust for the partnership creditors, or, that they have an equitable lien on such property. Yet, all that is meant by. such expressions is the existence of' an equitable right which will be enforced whenever a court of equity, at" } ]

[ { "docid": "18970065", "title": "", "text": "of the partner through whom the equity is derived remains; that is to say, “so long as he retains an interest in the firm assets, as a partner, a court of equity will allow the creditors of the firm to avail themselves of his equity, and enforce, through it, the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration”; but that “if, before the interposition of the court is asked, the property has ceased to belong to the partnership, and if by a bona fide transfer it has become the several property either of one partner or of a third person, the equities of the partners are extinguished, and consequently the derivative equities of the creditors are at an end. It is therefore * * * essential to any preferential right of the creditors that there shall be property owned by the partnership when the claim for preference is sought to be enforced.” Case v. Beauregard, 99 U. S. 119, 124, 125, 25 L. Ed. 370; Fitzpatrick v. Flannagan, 106 U. S. 648, 654, 1 Sup. Ct. 369, 27 L. Ed. 211; Huiskamp v. Moline Wagon Co., 121 U. S. 310, 313, 7 Sup. Ct. 899, 30 L. Ed. 971; In re Green (D. C.) 116 Fed. 118 (opinion by Judge Shiras); In re Suprenant (D. C.) 217 Fed. 470, 475 (opinion by Judge Ray). See, also, Rappie v. Dutton (C. C. A. 9) 226 Fed. 430, at page 433, 141 C. C. A. 260, in which case it is said that the rule is otherwise when the partnership was insolvent at the time of the transfer by one partner to the other. Subdivision (h) of section 5 of the Bankruptcy Act (Comp. St. § 9589) provides that: “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" }, { "docid": "23366713", "title": "", "text": "accounts, which belonged to the former firm, in payment of a debt of $955 which the firm owed his mother, and in payment of-his own individual debt of $500 which he owed her. A creditor of the former firm garnisheed persons indebted to the firm, and the mother, to whom these claims had thus been assigned, appeared and contested the right of the firm creditor to collect. The court said : “The creditors of the firm had no lien upon the goods or choses in action which had previously belonged to the firm, but which, on its dissolution, became the property of Hughes, and since he alone was owner, he might lawfully appropriate them to the payment of any debt which he owed, whether it was a debt due by the late firm or by himself alone.” To a similar effect are Roach v. Brannon, 57 Miss. 490, and Eldridge v. Phillipson, 58 Miss. 270. These cases, and the rule of the Supreme Court of Mississippi illustrated by them, have been adopted and approved by the Supreme Court of the United States in Fitzpatrick v. Flannagan, 106 U. S. 655, 658, 1 Sup. Ct. 369, 27 L. Ed. 211. In Fitzpatrick v. Flannagan, 106 U. S. 648, 657, 1 Sup. Ct. 369, 27 L. Ed. 211, the partners and the partnership were insolvent from the commencement to the end of the transactions. One of the partners died. The surviving partner continued the business, applied some of the partnership property to the payment of his individual debt which he had incurred to borrow money to pay pressing obligations of the partnership. A creditor of the partnership attached the property.on the ground that the surviving partner’s transfer to pay his individual debt was fraudulent and void as against the creditors of the partnership. The Supreme Court, speaking of this transfer which was made between the death of the deceased partner and the commencement of the attachment suit said: “Any intermediate disposition of the property, made in good faith, even although it may have been specifically a part of the partnership assets, and" }, { "docid": "18970063", "title": "", "text": "paid out of partnership assets, and individual debts out of individual assets, and that partnership creditors cannot resort to individual assets, nor individual creditors to partnership assets, except in case of surplus of assets of the given class over the debts of that class; and subdivision “f ” of section 5 of the Bankruptcy Act (Comp. St. § 9589) merely applies to distribution in bankruptcy, the rules theretofore existing in courts of equity. In re Telfer (C. C. A. 6) 184 Fed. 224, 106 C. C. A. 366; International Co. v. Cary (C. C. A. 6) 240 Fed. 101, 105, 153 C. C. A. 137. It is also now the settled rule that when a partnership, as such, is insolvent, and the only fund for distribution is produced by the estate of one member, the individual creditors of that member are entitled to priority in the distribution of the fund. Farmers’ & Mechanics’ Nat. Bank v. Ridge Ave. Bank, 240 U. S. 498, 36 Sup. Ct. 461, 60 L. Ed. 767, L. R. A. 1917A, 135. Appellant’s debt was not a firm debt, but was the individual debt of the bankrupt. It therefore follows that appellant, as a secured creditor of Hamden, is entitled to priority in the administration below, as against both partnership and individual creditors, unless the assets in question, notwithstanding the bankrupt’s individual purchase of one-half thereof from Johnston, and notwithstanding bankrupt’s sole operation of the business for more than four months after the purchase, still remain solely partnership assets, subject to be ad ministered as such under the conditions prevailing here, and free from the lien of appellant’s mortgage. It was long since declared to be the rule in equity that the right of partnership creditors to appropriate the partnership property specifically to the payment of their debts is derived, not through specific lien, but by a sort of súbrogation through the partner whose original right it was to have the partnership assets applied to the payment of partnership obligations; that this equity of the partnership creditors subsists so long, and so long only, as that" }, { "docid": "4231210", "title": "", "text": "separate property of the partners, and to alter the character of the property so as to convert joint into separate property, and vice versa. Such agreement, if made bona fide, will bind their creditors, and in the event of bankruptcy the property will be administered as firm or separate property, according to the character which the partners have placed upon it.” Of, similar import is Remington on Bankruptcy (2d Ed.) 2269. The rule d'educible from these authorities is that when a member of a solvent copartnership sells in good faith his interest to his co-partner, and the latter assumes the payment of the debts, the retiring partner loses his equitable right to require that the partnership' assets be applied to the payment of the partnership debts. In Fitzpatrick v. Flannagan, 106 U. S. 648, 654, 1 Sup. Ct. 369, 374 (27 L. Ed. 211), the court held that the right of a partnership creditor to appropriate the partnership properties specifically to the payment of his debt in equity in preference to creditors of an individual partner is derived through the retiring partner, whose original right it is to have the partnership assets applied to the payment of partnership obligations, and said: “And this equity of the creditor subsists as long as that of the partner, through which it is derived, remains; that-is, so long as the partner himself ‘retains an interest in the firm assets, as a partner, a court of equity will allow the creditors of the firm to avail themselves of .his equity, and enforce through it the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration.’ * * * Hence it follows that, ‘if before the interposition of the court is asked the property has ceased to belong to the partnership, if by a bona fide transfer it has become the several property either of one partner or of a third person, the equities of the partners are extinguished, and consequently the derivative equities of the creditors are at an end.’ ” The court, in that case," }, { "docid": "13728320", "title": "", "text": "instant case the express agreement was that the firm debts of Jewell & Stringer were assumed by Stringer, Sr. So that the liabilities of Jewell & Stringer never became the liabilities of Stringer & Co. 4. Partners may by agreement make any disposition of the firm assets that an individual can make of his property. Allen v. Center Valley Co., 21 Conn. 130, 54 Am. Dec. 333; Guild v. Leonard, 18 Pick. (Mass.) 511; Fitzgerald v. Christl, 20 N. J. Eq. 90; Haskin v. James, 96 Cal. 258, 31 Pac. 36. This is, of course, subject to the principle that the transfer is not made to defraud creditors. Huiskamp v. Moline Wagon Co., 121 U. S. 310, 7 Sup. Ct. 899, 30 L. Ed. 971. Whether this principle is also subject to the condition that the firm must have been solvent at the time is a-question upon which the courts have differed. We do not need to consider that phase of the subject, for it is not claimed that the firm of Jewell & Stringer was insolvent when its assets were transferred to Stringer. By the agreement between Jewell & Stringer, upon the dissolution of that firm, the firm assets became the individual property of Stringer, Sr. Where the assets are transferred to one partner in consideration of his promise to pay the liabilities, the validity of the transaction turns upon the law of fraudulent conveyances. If no intent to hinder, delay, or defraud creditors appears, the firm creditors cannot impeach the transaction. 5. The priority of firm creditors depends upon the existence of the partner’s lien, and if a partner consents that the firm assets shall become the individual property of one of the partners, the priority of the firm creditors is gone. Case v. Beauregard, 99 U. S. 119, 25 L. Ed. 370. As stated in Fitzpatrick v. Flannagan, 106 U. S. 648, 654, 1 Sup. Ct. 369, 27 L. Ed. 211, the right of a partnership creditor to subject the partnership property to the payment of his debt in equity in preference to creditors of an individual" }, { "docid": "4231211", "title": "", "text": "partner is derived through the retiring partner, whose original right it is to have the partnership assets applied to the payment of partnership obligations, and said: “And this equity of the creditor subsists as long as that of the partner, through which it is derived, remains; that-is, so long as the partner himself ‘retains an interest in the firm assets, as a partner, a court of equity will allow the creditors of the firm to avail themselves of .his equity, and enforce through it the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration.’ * * * Hence it follows that, ‘if before the interposition of the court is asked the property has ceased to belong to the partnership, if by a bona fide transfer it has become the several property either of one partner or of a third person, the equities of the partners are extinguished, and consequently the derivative equities of the creditors are at an end.’ ” The court, in that case, cited and approved the ruling of the Supreme Court of Mississippi in Schmidlapp & Bros. v. Currie & Co., 55 Miss. 597, 30 Am. Rep. 530, in which the court said: “If at a time when the firm was still in existence, when no legal liens of any sort had attached, when it was neither bankrupt nor contemplating bankruptcy, all the members have agreed to a particular disposition of its assets, and that disposition is neither colorable nor fraudulent — that is to say, i-s upon a bona fide consideration,-and reserves no benefit to the grantors —inasmuch as none of the partners can be heard to complain of such disposition, so none of the creditors of the firm, or of the individual members composing it, can question or attack it.” The principle so declared in Fitzpatrick v. Flannagan was reaffirmed in Huiskamp v. Moline Wagon Co., 121 U. S. 310, 7 Sup. Ct. 899, 30 L. Ed. 971. So in Sargent v. Blake, 160 Fed. 57, 87 C. C. A. 213, 17 L. R. A." }, { "docid": "22431797", "title": "", "text": "his debt consists simply in the right to reducé his claim to judgment, and to sell the goods of his -debtors on execution. His right to appropriate the partnership property specifically to the payment of. his debt, in equity, in preference to creditors of an individual partner, is derived through the otheiT partner, whose original right it is to have the -partnership assets applied to the .payment -of partnership obligations. And this equity of the creditor subsists as long as that of the partner, through which it is derived, remains; that is, so long as the partner himself “retains an interest in the firm assets, as a; partner, a court of equity will allow the creditors of the firm to avail themselves of his equity, and enforce through it the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration.” Such was the language of this court in Case v. Beauregard, 99 U. S. 119, in which Mr. Justice Strong, delivering its opinion, continued as follows: .“ It is indispensable, however, to such relief, when the creditors are, as in the present case, simple-contract creditors, that the partnership property should be within the control of the court, and in the course of administration, brought there by the bankruptcy of the firm, or by an assignment, or by the creation of a trust in some mode. This, is because neither the partners nor the joint creditors have any specific lien, nor is there any trust that can be enforced until .the property has passed in custodian' l.egis” Hence it follows that, “if before the intérposition of the court is asked the property has ceased' to belong to the partnership, if by a bona fide transfer it. has become the several property either of one partner of of a third person, the equities of the partners are extinguished, and consequently the derivative equities of the creditors are at an end.” In that case it was held, in respect to a firm admitted to be insolvent, that transfers made by the individual partners of" }, { "docid": "22038702", "title": "", "text": "of his equity, and enforce, through it, the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration. It is indispensable, however, to such relief, when the creditors are, as in the present case, simple-contract creditors, that the partnership property should be within the control of tbe court and in the course of administration, brought there by' the bankruptcy of the firm, or by an assignment, or by the creation of a trust in some mode. This is because neither the partners nor the joint creditors have any specific lien, nor is there any trust that can be enforced until the property has passed in custodian legis. Other property can be followed only after a judgment at law has been obtained and an execution has proved fruitless. So, if before the interposition of the court is asked the property has ceased to belong to the partnership, if by a Iona fide transfer it has become the several property either of one partner or of a third person, the equities of the partners are extinguished, and consequently the derivative equities of the creditors are at an end. It is, therefore, always essential1 to any preferential right of the creditors that there shall be property owned by the partnership when the claim for preference is sought to be enforced. Thus, in Ex parte Ruffin (6 Ves. 119), where from a partnership of two persons' one retired, assigning the partnership property to the other, and taking a bond for the value and a covenant of indemnity against debts, it was ruled by Lord Eldon that the joint creditors had no equity attaching upon partnership effects, even remaining in specie. ' And such has been the rule generally accepted ever since, with the single qualification that the assignment of the retiring partner is not mala fide. Kimball v. Thompson, 13 Metc. (Mass.) 283; Allen v. The Centre Valley Company et al., 21 Conn. 130; Ladd v. Griswold, 9 Ill. 25; Smith v. Edwards, 7 Humph. (Tenn.) 106; Robb and Others v. Mudge and Another, 14" }, { "docid": "22431798", "title": "", "text": ".“ It is indispensable, however, to such relief, when the creditors are, as in the present case, simple-contract creditors, that the partnership property should be within the control of the court, and in the course of administration, brought there by the bankruptcy of the firm, or by an assignment, or by the creation of a trust in some mode. This, is because neither the partners nor the joint creditors have any specific lien, nor is there any trust that can be enforced until .the property has passed in custodian' l.egis” Hence it follows that, “if before the intérposition of the court is asked the property has ceased' to belong to the partnership, if by a bona fide transfer it. has become the several property either of one partner of of a third person, the equities of the partners are extinguished, and consequently the derivative equities of the creditors are at an end.” In that case it was held, in respect to a firm admitted to be insolvent, that transfers made by the individual partners of their interest in the partnership property converted that property into individual- property, -terminated the equity of any partner to require the application thereof to the payment-of the joint debts, and constituted a bar to a bill in equity filed by a partnership creditor to subject- ■ it to the payment of his debt, the-relief prayed for being grounded on the claim that these transfers were in fraud of his. rights as a creditor of the firm. Another case between the same parties came again for consideration before the court, which reaffirmed the decision-, and held that in-such a case the bill might be properly filed by a creditor, without first reducing his claim to judgment. Case v. Beauregard, 101 U. S. 688. The same doctrine has been fully sanctioned by the Supreme Court of Mississippi in Schmidlapp v. Currie, 55 Miss. 597, where it is said, that “the doctrine that firm- assets must first be applied to the payment of- firm debts, and individual prop erty to individual debts, is only a principle of administration" }, { "docid": "4231209", "title": "", "text": "“A valid sale of a partnership property by the firm to one or more of its members, or to a new firm in which some of the former partners are members, puts an end to the old partnership title, and destroys the lien of the partners thereon, as well as the preference of the old partnership creditors therein over the individual creditors of the purchasing partner.” The same rule is announced in 22 Am. & Eng. Enc. of Law, 133; 2 Lindley on Partnership, § 603; and Bates on Partnership!, § 550. In Loveland on Bankruptcy (4th Ed.) 554, it is said: “A sale by one partner to Ms copartner, when the firm is insolvent, which if held would operate to apply the property of the retiring partner to the payment of the individual debts of the partner purchasing, is considered fraudulent and the property distributed as firm property. But it is competent for solvent partners to make any arrangements which they think proper with respect to- their joint property in the partnership, or the separate property of the partners, and to alter the character of the property so as to convert joint into separate property, and vice versa. Such agreement, if made bona fide, will bind their creditors, and in the event of bankruptcy the property will be administered as firm or separate property, according to the character which the partners have placed upon it.” Of, similar import is Remington on Bankruptcy (2d Ed.) 2269. The rule d'educible from these authorities is that when a member of a solvent copartnership sells in good faith his interest to his co-partner, and the latter assumes the payment of the debts, the retiring partner loses his equitable right to require that the partnership' assets be applied to the payment of the partnership debts. In Fitzpatrick v. Flannagan, 106 U. S. 648, 654, 1 Sup. Ct. 369, 374 (27 L. Ed. 211), the court held that the right of a partnership creditor to appropriate the partnership properties specifically to the payment of his debt in equity in preference to creditors of an individual" }, { "docid": "22431796", "title": "", "text": "property which had come to him as such survivor, to repay such a loan, without any actual ¡ fraudulent intent, would be a fraud in law upon every creditor of the partnership, justifying a seizure, on attachment for that cause, of all his' property, whether formerly belonging t'o the partnership, or. since acquired, and that although his individual additions to his stock in trade were, at least, equal to what had been taken for the payment of individual debts. It is fair to consider this charge, although not so qualified, in connection with the facts, in reference to which there jvas evidence, that the firm of Fitzpatrick Brothers, and its individual members, were insolvent, in the sense of not being.able to pay their debts, during the whole period of its existence, ■ and the -additional fact, that -the deceased partner had before his death drawn from the partnership more than his interest therein, and was indebted to the firm. The legal right of a partnership creditor to subject the partnership property to the payment of his debt consists simply in the right to reducé his claim to judgment, and to sell the goods of his -debtors on execution. His right to appropriate the partnership property specifically to the payment of. his debt, in equity, in preference to creditors of an individual partner, is derived through the otheiT partner, whose original right it is to have the -partnership assets applied to the .payment -of partnership obligations. And this equity of the creditor subsists as long as that of the partner, through which it is derived, remains; that is, so long as the partner himself “retains an interest in the firm assets, as a; partner, a court of equity will allow the creditors of the firm to avail themselves of his equity, and enforce through it the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration.” Such was the language of this court in Case v. Beauregard, 99 U. S. 119, in which Mr. Justice Strong, delivering its opinion, continued as follows:" }, { "docid": "18970064", "title": "", "text": "135. Appellant’s debt was not a firm debt, but was the individual debt of the bankrupt. It therefore follows that appellant, as a secured creditor of Hamden, is entitled to priority in the administration below, as against both partnership and individual creditors, unless the assets in question, notwithstanding the bankrupt’s individual purchase of one-half thereof from Johnston, and notwithstanding bankrupt’s sole operation of the business for more than four months after the purchase, still remain solely partnership assets, subject to be ad ministered as such under the conditions prevailing here, and free from the lien of appellant’s mortgage. It was long since declared to be the rule in equity that the right of partnership creditors to appropriate the partnership property specifically to the payment of their debts is derived, not through specific lien, but by a sort of súbrogation through the partner whose original right it was to have the partnership assets applied to the payment of partnership obligations; that this equity of the partnership creditors subsists so long, and so long only, as that of the partner through whom the equity is derived remains; that is to say, “so long as he retains an interest in the firm assets, as a partner, a court of equity will allow the creditors of the firm to avail themselves of his equity, and enforce, through it, the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration”; but that “if, before the interposition of the court is asked, the property has ceased to belong to the partnership, and if by a bona fide transfer it has become the several property either of one partner or of a third person, the equities of the partners are extinguished, and consequently the derivative equities of the creditors are at an end. It is therefore * * * essential to any preferential right of the creditors that there shall be property owned by the partnership when the claim for preference is sought to be enforced.” Case v. Beauregard, 99 U. S. 119, 124, 125, 25 L. Ed." }, { "docid": "13728321", "title": "", "text": "was insolvent when its assets were transferred to Stringer. By the agreement between Jewell & Stringer, upon the dissolution of that firm, the firm assets became the individual property of Stringer, Sr. Where the assets are transferred to one partner in consideration of his promise to pay the liabilities, the validity of the transaction turns upon the law of fraudulent conveyances. If no intent to hinder, delay, or defraud creditors appears, the firm creditors cannot impeach the transaction. 5. The priority of firm creditors depends upon the existence of the partner’s lien, and if a partner consents that the firm assets shall become the individual property of one of the partners, the priority of the firm creditors is gone. Case v. Beauregard, 99 U. S. 119, 25 L. Ed. 370. As stated in Fitzpatrick v. Flannagan, 106 U. S. 648, 654, 1 Sup. Ct. 369, 27 L. Ed. 211, the right of a partnership creditor to subject the partnership property to the payment of his debt in equity in preference to creditors of an individual partner is derived through the-other partner, and it subsists only so long as that of the partner through which it is derived remains. And in Lindley on Partnership, volume 2 (2d Am. Ed.) p. 698, it is said that: “The creditors of the firm have no lien on its property which can prevent the partners from bona fide changing its character and converting it into the separate estate of one of them.” The transfer of the firm assets of Jewell & Stringer to Stringer, therefore, deprived the creditors of Jewell & Stringer of their priority. So that, if Mrs. Lewis were to be regarded as a creditor of Jewell & Stringer, rather than of Stringer individually, she lost her priority by that transfer. The case of La Montague v. Bank of New York National Banking Association, 183 N. Y. 173, 76 N. E. 33, is relied upon by counsel for Mrs. Lewis. That case,.however, is not applicable to the facts which this record presents. That case relates to a written transfer by one firm to" }, { "docid": "22038700", "title": "", "text": "Mr. Justice Strong delivered the opinion of the court. The object of this bill is to follow and subject to the payment of a partnership debt property which formerly belonged to the partnership, but which, before the bill was filed, had been transferred to the defendants. There is little if any controversy respecting the facts, and little in regard to the principles of equity invoked by the complainant. The important question is, whether those principles are applicable to. the facts of the case. No doubt the effects of a partnership belong to it so long as it continues in existence, and not to the individuals who compose it. The right of each partner extends only to a share of Avhat may remain after payment of the debts of the firm and the settlement of its accounts. Growing out of this right, or rather included in it, is the right to have.the partnership property applied to the payment of the partnership debts in preference to those of any individual partner. This is an equity the partners have as between themselves, and in certain circumstances it inures to the benefit of the creditors of the firm. The latter are said to have a privilege or preference, sometimes loosely denommated a lien, to have the debts due to them paid out of the assets of a firm in course of liquidation, to the exclusion of the creditors of its several members. Their equity, however, is a derivative one. It is not held or enforceable in their own right. It is practically a subrogation to the equity of the individual partner, to be made effective only through him. Hence, if he is not in a condition to enforce it, the creditors of the firm cannot be. Rice v. Barnard et al., 20 Vt. 479; Appeal of the York County Bank, 82 Pa. St. 446. But so long as the equity of the partner remains in him, so long as he retains an interest in the firm assets, as a partner, a court of equity will allow the creditors of the firm to avail themselves" }, { "docid": "22431799", "title": "", "text": "their interest in the partnership property converted that property into individual- property, -terminated the equity of any partner to require the application thereof to the payment-of the joint debts, and constituted a bar to a bill in equity filed by a partnership creditor to subject- ■ it to the payment of his debt, the-relief prayed for being grounded on the claim that these transfers were in fraud of his. rights as a creditor of the firm. Another case between the same parties came again for consideration before the court, which reaffirmed the decision-, and held that in-such a case the bill might be properly filed by a creditor, without first reducing his claim to judgment. Case v. Beauregard, 101 U. S. 688. The same doctrine has been fully sanctioned by the Supreme Court of Mississippi in Schmidlapp v. Currie, 55 Miss. 597, where it is said, that “the doctrine that firm- assets must first be applied to the payment of- firm debts, and individual prop erty to individual debts, is only a principle of administration adopted by the courts where, from any cause, they are called upon to wind txp the firm business, and find that the members have made no valid disposition of or charges upon its assets. Thus, where, upon a dissolution of the firm by death, or limitation, or bankruptcy, or from any other cause, the courts are called upon to wind up the concern, they adopt and enforce the-principle stated; but the principle: itself springs alone out of the obligation to do justice between the partners.” In that case one of two partners, but with the assent of the other, and without any fraudulent intent, transferred the whole business and stock of the firm to a third person in • payment of an individual debt. A creditor of the partnership sued out a writ of attachment against them, and caused it to be levied on the goods in the possession of the purchaser, upon the ground that the transfer of the firm goods in satisfaction of the individual debt of one of the partners was fraudulent" }, { "docid": "4231212", "title": "", "text": "cited and approved the ruling of the Supreme Court of Mississippi in Schmidlapp & Bros. v. Currie & Co., 55 Miss. 597, 30 Am. Rep. 530, in which the court said: “If at a time when the firm was still in existence, when no legal liens of any sort had attached, when it was neither bankrupt nor contemplating bankruptcy, all the members have agreed to a particular disposition of its assets, and that disposition is neither colorable nor fraudulent — that is to say, i-s upon a bona fide consideration,-and reserves no benefit to the grantors —inasmuch as none of the partners can be heard to complain of such disposition, so none of the creditors of the firm, or of the individual members composing it, can question or attack it.” The principle so declared in Fitzpatrick v. Flannagan was reaffirmed in Huiskamp v. Moline Wagon Co., 121 U. S. 310, 7 Sup. Ct. 899, 30 L. Ed. 971. So in Sargent v. Blake, 160 Fed. 57, 87 C. C. A. 213, 17 L. R. A. (N. S.) 1040, 15 Ann. Cas. 58, the^court said: “The right of the creditors of the partnership to payment out of the partnership property in preference to the individual creditors is the mere right of subrogation or derivation to enforce this right of one of the partners after the partnership property has been placed in the custody of the law. Until it has been so placed each partner has plenary power at any time to release or waive this right, and if each partner has done so and at the time the property comes within the jurisdiction of a court, no partner has this right, then no creditor of the partnership, has it, for a stream cannot rise higher than its source.” in- such cases it is held that the debts which were formerly partnership debts become the individual debts of the continuing partner in all cases where the firm was solvent and the transaction was not tainted with fraud. In re Montgomery, 3 Ben. 565 [Fed. Cas. No. 9,728] ; In re Long, 7" }, { "docid": "18970068", "title": "", "text": "preference be given firm creditors, or there remained no surviving partner other than the purchaser of the rights of his copartner. Johnston was not before the court, except as a witness for the trustee.in bankruptcy. The trustee, however, invokes the Michigan Uniform Partnership Act of 1917 (Eaws 1917, p. 119 et seq.), which provides: By section 27, subd. 1, that “a conveyance by a partner of his interest in the partnership does 'not of itself dissolve the partnership * * * ”; by section 30, that “on dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed”; by section 40, subd. (h), “when partnership property and the individual properties of the partners are in the possession of a court for distribution, partnership creditors shall have priority on partnership property and separate creditors on individual property, saving the rights of lien or secured creditors as heretofore” ; and by section 41, subd. 2, “when all but one partner retire and assign ’ * * * their rights in partnership property to the remaining partner, who continues the business without liquidation of partnership affairs, * * * creditors of the dissolved partnership are also creditors of the person * * * so continuing the business.” Were we to assume that the Michigan statute would control the equitable distribution of assets of a partnership (in spite of the fact that the statute merely establishes a rule of equity, and not a rule of property, and is without the terms of the federal Conformity Act), we think it js not substantially in conflict with the rule of equity prevailing m the federal courts. So far as the statute conflicts with the express terms of the Bankruptcy Act, the former, of course, must give way. With respect to the cited provisions of sections 27 and 30, it may be said that the dissolution of the partnership was not essential to the federal rule which we have above stated. Huiskamp v. Moline Wagon Co., supra, 121 U. S. at page 323, 7 Sup. Ct. 899, 30 L. Ed. 971." }, { "docid": "3065910", "title": "", "text": "upon the property within that period, and not to those attached to the property when it came into the hands of the bankrupt. See Metcalf Bros. & Co. v. Barker, 187 U. S. 165, 174, 23 Sup. Ct. 67, 47 L. Ed. 122, and Thompson v. Fairbanks, 196 U. S. 516, 525, 25 Sup. Ct. 306, 49 L. Ed. 577. Turning now from the broad question as to priorities between the classes of creditors, i. e., those whose debts were incurred by the decedent and those incurred by the widow, either as executrix or sole beneficiary, the contentions affecting only the debts of the decedent will now be considered. The suits instituted by some of the creditors, whether founded on the Heirs and Devisees Act, supra, or invoking the general equity powers to enforce an equitable lien, cannot avail to obtain priority over the creditors belonging to the same class. Some of these were instituted before the bankruptcy' proceedings were begun. Those founded on the Heirs and Devisees Act were to enforce that statute’s provision, fastening the decedent’s debts upon the lands devised to the bankrupt, and still held by her. The others were to enforce equitable liens upon such lands arising from the testator’s directions. Both, remedies were available to all the decedent’s creditors, and. none would have obtained priority over the others by first obtaining a judgment, even if such judgment had been rendered before the commencement of bankruptcy proceedings. The legal title to the lands as assets to be affected by such suits was in the bankrupt, subject to the payment of such debts. The filing of the petition in bank ruptcy in no way changed this situation; hut as the legal title to such lands, etc., would pass to the trustee in bankruptcy, when appointed, the bankruptcy court, and not the state court, would be the judicial forum in which to litigate the respective contentions with respect to such lands and assets. Thomas v. Woods, 173 Fed. 585, 590, 97 C. C. A. 535, 26 L. R. A. (N. S.) 1180, 19 Ann. Cas. 1080. The" }, { "docid": "22038701", "title": "", "text": "have as between themselves, and in certain circumstances it inures to the benefit of the creditors of the firm. The latter are said to have a privilege or preference, sometimes loosely denommated a lien, to have the debts due to them paid out of the assets of a firm in course of liquidation, to the exclusion of the creditors of its several members. Their equity, however, is a derivative one. It is not held or enforceable in their own right. It is practically a subrogation to the equity of the individual partner, to be made effective only through him. Hence, if he is not in a condition to enforce it, the creditors of the firm cannot be. Rice v. Barnard et al., 20 Vt. 479; Appeal of the York County Bank, 82 Pa. St. 446. But so long as the equity of the partner remains in him, so long as he retains an interest in the firm assets, as a partner, a court of equity will allow the creditors of the firm to avail themselves of his equity, and enforce, through it, the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration. It is indispensable, however, to such relief, when the creditors are, as in the present case, simple-contract creditors, that the partnership property should be within the control of tbe court and in the course of administration, brought there by' the bankruptcy of the firm, or by an assignment, or by the creation of a trust in some mode. This is because neither the partners nor the joint creditors have any specific lien, nor is there any trust that can be enforced until the property has passed in custodian legis. Other property can be followed only after a judgment at law has been obtained and an execution has proved fruitless. So, if before the interposition of the court is asked the property has ceased to belong to the partnership, if by a Iona fide transfer it has become the several property either of one partner or of a third" }, { "docid": "23366707", "title": "", "text": "the creditors paid have no reasonable cause to believe that a preference is intended, because until the partnership property is placed in custodia legis the rule of administration does not take effect and the preferential equities of the partnership creditors do not attach to it either by way of trust or lien, and because the Supreme Court, by whose determination this court must be guided, and the weight of modern authority have so determined, we are constrained to hold and do decide that, when all the partners consent, their application of the partnership property to the payment of an individual debt of a partner within four months of the filing of a petition in bankruptcy while the partners and the partnership are insolvent does not evidence any intent on the part of the debtors to hinder, delay, or defraud the creditors of the partnership within the meaning of section 67e of the bankruptcy law, and it is not void or voidable where the creditor paid has no reasonable cause to believe that a preference was intended by the payment. Case v. Beauregard, 99 U. S. 119, 125, 126, 127, 25 L. Ed. 370; Fitzpatrick v. Flannagan, 106 U. S. 648, 656, 1 Sup. Ct. 369, 27 L. Ed. 211; Huiskamp v. Moline Wagon Co., 121 U. S. 310, 323, 7 Sup. Ct. 899, 30 L. Ed. 971; Ex parte Peake, 1 Maddock’s Chan. 191, 197, 198; Allen v. Center Valley Co., 21 Conn. 130, 54 Am. Dec. 333; Armstrong v. Fahnestock, 19 Md. 58, 65; Howe v. Lawrence, 9 Cush. (Mass.) 553, 57 Am. Dec. 68; Upson v. Arnold, 19 Ga. 190, 63 Am. Dec. 302; Goddard-Peck Grocery Co. v. McCune, 122 Mo. 426, 25 S. W. 904, 29 L. R. A. 681; Schmidlapp & Bros. v. Currie & Co., 55 Miss. 597, 599, 30 Am. Rep. 530; Fulton v. Hughes, 63 Miss. 61, 64; McDonald & Co. v. Cash & Hainds, 57 Mo. App. 536; Siegel v. Chidsey, 28 Pa. 279, 70 Am. Dec. 124; Case v. Ellis, 4 Ind. App. 224, 30 N. E. 907; Ex parte Ruffin," } ]

[ { "docid": "22198857", "title": "", "text": "argues that defendants’ racketeering conduct violating section 1962(c) proximately caused him to lose not only his job but also business commissions, thus distinguishing his case from the line of cases relied on by the district court. Second, he argues that an overt act in furtherance of defendants’ conspiracy to racketeer was his discharge from employment and that such an act suffices to create civil liability under section 1962(d). Hecht also argues that he properly pleaded a RICO conspiracy, and that, even if he did not, he should be permitted to amend his complaint. DISCUSSION The RICO civil liability provision confers standing on “[a]ny person injured in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). Thus, in order to have standing, a plaintiff must show: (1) a violation of section 1962; (2) injury to business or property; and (3) causation of the injury by the violation. See O’Malley v. O’Neill, 887 F.2d 1557, 1561 (11th Cir.1989). This appeal principally concerns the last element: causation. Because a plaintiff must show injury “by the conduct constituting the violation” of RICO, see Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985), the injury must be caused by a pattern of racketeering activity violating section 1962 or by individual RICO predicate acts. See Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1100 (2d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). Moreover, the RICO pattern or acts must proximately cause plaintiff’s injury. See Sperber v. Boesky, 849 F.2d 60, 64 (2d Cir.1988); O’Malley, 887 F.2d at 1561. By itself, factual causation (e.g., “cause-in-fact” or “but for” causation) is not sufficient. See Sperber, 849 F.2d at 63. We recognize that determining what is the proximate cause of an injury is not free from normative legal policy considerations. See id. (citing to W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts 264 (5th ed. 1984); Restatement (Second) of Torts § 431 comment a (1965); Howarth, “On Madness of" } ]

[ { "docid": "9884764", "title": "", "text": "461 (2d Cir.1991), cert. denied, 508 U.S. 939, 113 S.Ct. 2414, 124 L.Ed.2d 637 (1993)). The offense is complete upon the mailing or wire transmission, and each such mailing or transmission is a separate offense. United States v. Eskow, 422 F.2d 1060, 1064 (2d Cir.), cert. denied, 398 U.S. 959, 90 S.Ct. 2174, 26 L.Ed.2d 544 (1970). The matter mailed or transmitted need not itself be false or fraudulent, although it must constitute an “essential part of the scheme” to defraud. United States v. Tocco, 135 F.3d 116, 124-26 (2d Cir.) cert. denied, 523 U.S. 1096, 118 S.Ct. 1581, 140 L.Ed.2d 795 (1998); see In re Sumitomo Copper Litigation, 995 F.Supp. 451, 456 (S.D.N.Y.1998) (noting that “a detailed description of the underlying scheme and the connection therewith of the mail and/or wire communications, is sufficient to satisfy Rule 9(b)” in cases in which the communications are not themselves misleading). Similarly, injury to the victim or victims is not an element of the offense, see United States v. Dinome, 86 F.3d 277, 283 (2d Cir.1996), although a private civil RICO plaintiff does not have standing to sue under 18 U.S.C. § 1964(c) unless it has in fact been injured “by reason of’ the violation. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (noting that a RICO plaintiff “only has standing if, and can only recover to the extent that, he has been injured in his business or property by [reason of] the conduct constituting the violation”). In this Circuit, proximate causation in mail fraud cases generally means reliance on misrepresentations. Metromedia Co. v. Fugazy, 983 F.2d 350, 368 (2d Cir.1992), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). The requirements of Rule 9(b) of the Federal Rules of Civil Procedure must be complied with when mail and wire fraud are invoked as predicate acts in a civil RICO action. The Scheme to Defraud As alleged in the Complaint, the Baron & Budd Defendants’ scheme to defraud consists of a campaign to extract settlement dollars from asbestos defendants by" }, { "docid": "6851187", "title": "", "text": "based solely on his allegations of misrepresentations by Midas and thus satisfies the first element of a claim under RICO. Although justifiable reliance is not necessary to establish predicate acts of mail and wire fraud, plaintiff must nonetheless establish justifiable reliance to satisfy a different element of his RICO claim, that of injury to plaintiffs business or property. After a plaintiff shows that defendant has violated section 1962, he must further show that the predicate act caused the injury for which plaintiff seeks recovery. See Powers, 57 F.3d at 188; Metromedia Co. v. Fugazy, 983 F.2d 350, 368 (2d Cir.1992). RICO provides that “any person injured in his business or property by reason of a RICO violation may bring a civil action to recover treble damages.” 18 U.S.C. § 1964(c). Courts have interpreted the phrase “by reason of’ to require that there be a causal connection between the prohibited conduct and the plaintiffs injury. See Powers, 57 F.3d at 188; First Nationwide Bank, 27 F.3d at 766; Standardbred Owners Ass’n v. Roosevelt Raceway Assocs., 985 F.2d 102, 104 (2d Cir.1993); Fugazy, 983 F.2d at 368. Where mail or wire fraud is the RICO predicate act, plaintiff must show justifiable reliance to establish causation. See Fugazy, 983 F.2d at 368. Thus, plaintiffs fraud claims under RICO must fail, if not because plaintiff has failed to establish predicate acts, then because plaintiff as a matter of law cannot prove causation. As set forth above, plaintiff could have relied upon Midas’s misrepresentations only by disregarding the express terms of the franchise contracts and thus as a matter of law could not have justifiably relied upon these misrepresentations. Therefore, Midas is entitled to summary judgment on plaintiffs RICO mail and wire fraud claims. Plaintiff’s Claim for Tortious Interference with the Danbury Exhaust Transaction Plaintiff further alleges that Midas tortiously interfered with PMC’s attempted acquisition of Danbury Exhaust by persuading Danbury Exhaust not to sell to PMC and encouraging other Midas franchisees to make offers to purchase the Danbury Exhaust franchise. See Pl. 3(g) Stmt. ¶ 2(d); Compl. ¶ 266. New York law imposes liability" }, { "docid": "575887", "title": "", "text": "which a jury could infer that Peat Marwick, through Ferrara, “by words or actions, manifested an agreement” with Sam E. Antar and others falsely to certify the ac curacy of Crazy Eddie’s annual financial statements and Form 10-K reports in 1986 and 1987, and to assist in the preparation of false Form S-l Registration Statements in March and June of 1986.. b. Whether plaintiffs were injured “by reason of a violation of section 1962” Section 1964(c) provides, in pertinent part, that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter ... may sue ... in any appropriate United States district court.” Plaintiffs must be able to show that their injuries were caused “by a pattern of racketeering activity violating section 1962 or by individual predicate acts.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990). Moreover, the RICO pattern or predicate acts must be the proximate cause of plaintiffs’ injuries. Holmes, — U.S. at -, 112 S.Ct. at 1316-18. The Second Circuit has imposed varying requirements for demonstrating causation, depending on which violation of section 1962 or which predicate act caused injury. (1) Injury by reason of conspiracy Insofar as plaintiff alleges injury due to defendant’s violation of section 1962(d) for criminal conspiracy, plaintiff must demonstrate injury attributable to at least one overt predicate act. Hecht, 897 F.2d at 23. To have standing to bring a claim for a violation of section 1962(d), the EMI/Zinn and class plaintiffs must show injury caused by at least one overt act of mail fraud, wire fraud, or “fraud in the sale of securities.” (2) Injury by reason of mail or wire fraud Insofar as the injury is attributed to predicate acts of mail or wire fraud, plaintiff must show that the defendant’s misrepresentations were relied upon. See Metromedia Co. v. Fugazy, 983 F.2d 350, 368 (2d Cir.1992) (mail and wire fraud); County of Suffolk v. Long Island Lighting Co., 907 F,2d 1295, 1311 (2d Cir.1990) (mail fraud). The EMI/Zinn Complaint alleges that plaintiffs purchased Crazy Eddie shares in reasonable reliance" }, { "docid": "22928343", "title": "", "text": "and American Express. Finally, the complaint alleged that “as a proximate result of the defendants’ illegal activities violative of RICO, 18 U.S.C. §§ 1961-1968, [American Express] has been injured in its business and property in that it has suffered the loss of substantial amounts in sales and profits, has been exposed to potential liability, has incurred damage to its business reputation and goodwill, and has expended, and will continue to expend, large sums of costs, expenses and legal fees in connection with defendants’ unlawful acts.” The district court dismissed plaintiffs-appellants’ RICO claim for each of two independently sufficient reasons. First, the district court concluded that American Express’s alleged injuries were not proximately caused by the RICO defendants’ alleged RICO violations. Second, the court held that the complaint failed to adequately allege a “pattern of racketeering activity” under RICO. Because the district court also dismissed plaintiffs-appellants’ Section 14(a) claim, it concluded that it would be appropriate to decline to exercise supplemental jurisdiction over the state law claims and therefore dismissed the complaint in its entirety without leave to replead. This appeal followed. DISCUSSION Appellants confine their appeal to the dismissal of their RICO claim. Appellees assert that the judgment of the district court should be affirmed for the reasons relied on by the district court, as well as on five other grounds. However, we need consider only appellees’ contention that the injury to American Express was not proximately caused by the alleged acts of the RICO defendants. RICO grants standing to sue to “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter.” 18 U.S.C. § 1964(c) (1988) (emphasis added). This language limits standing to plaintiffs whose injuries were both factually and proximately caused by the alleged RICO violation. Holmes v. Securities Investor Protection Corp., — U.S. -, -, 112 S.Ct. 1311, 1316-18, 117 L.Ed.2d 532 (1992); see also Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990) (“By itself, factual causation (e.g., ‘cause-in-fact’ or ‘but for’ causation) is not sufficient.”), Sperber v. Boesky, 849 F.2d 60, 63 (2d" }, { "docid": "16304203", "title": "", "text": "Investor Protection Corp., 503 U.S. 258, 279, 112 S.Ct. 1311, 1323-24, 117 L.Ed.2d 532 (1992). Thus, “the RICO pattern or [predicate] acts must proximately cause plaintiffs injury.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990). For the RICO pattern or acts to proximately cause a plaintiffs injury, they must be a “substantial factor in the sequence of responsible causation, and ... the injury [must be] reasonably foreseeable or anticipated as a natural consequence.” Id. at 23-24. See also Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 636 (2d Cir.1989) (“The phrase ‘by reason of requires that there be a causal connection between the prohibited conduct and plaintiffs injury”); Burdick v. American Express Co., 865 F.2d 527, 529 (2d Cir.1989) (per curiam) (“in order to establish standing, [plaintiff] must show that the damage to his business or property resulted from the alleged mail and securities fraud”). In evaluating the issue of proximate cause, the Second Circuit has held that a plaintiffs injuries are not proximately caused by a defendant’s alleged RICO violation, or predicate acts of mail or wire fraud, where the plaintiff was neither the direct target of the racketeering enterprise nor a competitor or customer of the racketeer. Sperber v. Boesky, 849 F.2d 60, 65 (2d Cir.1988). See also In re American Express Co. Shareholder Litigation, 39 F.3d 395, 400 (2d Cir.1994) (dismissing RICO claims by shareholders who were not the intended targets of the RICO violations); Hecht, 897 F.2d at 24 (dismissing RICO claims where plaintiff was neither the target of the racketeering enterprise nor a competitor or customer of the racketeer); Miller v. Helmsley, 745 F.Supp. 932, 938 (S.D.N.Y.1990) (“‘the Second Circuit [has] concluded that plaintiffs who are either targets of the racketeering enterprise, competitors, or customers of the racketeer are those plaintiffs who were probably intended by Congress to recover under RICO’ ”) (quoting Department of Economic Dev. v. Arthur Andersen & Co., 747 F.Supp. 922, 941 (S.D.N.Y.1990)). Applying this standard, courts in this circuit and others consistently have declined to accord standing under section 1962(c) to employees who were discharged" }, { "docid": "23147425", "title": "", "text": "Corp., — U.S. -, -, 112 S.Ct. 1311, 1318, 117 L.Ed.2d 532 (1992); Manson v. Stacescu, 11 F.3d 1127, 1130 (2d Cir.1993); Stochastic Decisions, Inc. v. DiDomenico, 995 F.2d 1158, 1167 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 385, 126 L.Ed.2d 334 (1993); Standardbred Owners Ass’n v. Roosevelt Raceway Assocs., 985 F.2d 102, 104 (2d Cir.1993); Metromedia Co. v. Fugazy, 983 F.2d 350, 368 (2d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993); Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990); Sperber v. Boesky, 849 F.2d 60, 64 (2d Cir.1988). Dobrowolski and Trapanotto primarily rely upon Hecht in seeking reversal on this issue. In Hecht, we affirmed the dismissal of a RICO complaint brought by a discharged employee who claimed that he had been terminated because he had “blown the whistle” on mail fraud and wire fraud committed by other employees in dealing with customers’ accounts. 897 F.2d at 23. We ruled that the claimed “injury must be caused by a pattern of racketeering activity violating section 1962 or by individual RICO predicate acts,” id, and that “the RICO pattern or acts must proximately cause plaintiffs injury.” Id. Applying this rule to Hecht’s § 1962(d) conspiracy claim, we stated that “[b]ecause a conspiracy — -an agreement to commit predicate acts — cannot by itself cause any injury, we think that Congress presupposed injury-causing overt acts as the basis of civil standing to recover for RICO conspiracy violations.” 897 F.2d at 24. Further, because RICO’s purpose “is to target RICO activities, and not other conduct,” id., we held that § 1962(d) “standing may be founded only upon injury from overt acts that are also section 1961 predicate acts, and not upon any and all overt acts furthering a RICO conspiracy.” 897 F.2d at 25. We concluded that “[b]ecause the overt act of Hecht’s discharge was not a section 1961(1) predicate act, his loss of employment does not confer civil standing.” 897 F.2d at 24. In light of Hecht, the district court’s instructions to the jury regarding injury causation for §" }, { "docid": "22928344", "title": "", "text": "leave to replead. This appeal followed. DISCUSSION Appellants confine their appeal to the dismissal of their RICO claim. Appellees assert that the judgment of the district court should be affirmed for the reasons relied on by the district court, as well as on five other grounds. However, we need consider only appellees’ contention that the injury to American Express was not proximately caused by the alleged acts of the RICO defendants. RICO grants standing to sue to “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter.” 18 U.S.C. § 1964(c) (1988) (emphasis added). This language limits standing to plaintiffs whose injuries were both factually and proximately caused by the alleged RICO violation. Holmes v. Securities Investor Protection Corp., — U.S. -, -, 112 S.Ct. 1311, 1316-18, 117 L.Ed.2d 532 (1992); see also Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990) (“By itself, factual causation (e.g., ‘cause-in-fact’ or ‘but for’ causation) is not sufficient.”), Sperber v. Boesky, 849 F.2d 60, 63 (2d Cir.1988) (RICO “liability should not extend as far as factual causation”). Holmes described the common law proximate cause requirement as often taking the shape of a “direct relation between the injury asserted and the injurious conduct alleged.” Holmes, — U.S. at -, 112 S.Ct. at 1318. The requirement of such a “direct relation” therefore generally precludes recovery by “a plaintiff who complain[s] of harm flowing merely from the misfortunes visited upon a third person by the defendant’s acts.” Id. Holmes essentially endorsed a definition of proximate cause that we had earlier adopted. See Hecht, 897 F.2d 21, 23-24; Burdick v. American Express Co., 865 F.2d 527, 529 (2d Cir.1989); Sperber, 849 F.2d at 64-65. In Sperber, plaintiffs were members of a class of investors who, before arbitrager Ivan Boesky pleaded guilty to insider trading, had purchased shares of stock in six public corporations in which Boesky also held interests. 849 F.2d at 62. Subsequent to Boesky’s guilty plea, the share prices of the six stocks dropped by between 7% and 32%. The plaintiffs claimed that" }, { "docid": "5821446", "title": "", "text": "guilty to aiding and abetting the introduction of merchandise into the United States by means of false and fraudulent practices. Several individuals involved in the scheme pled guilty to crimes such as wire fraud, aiding and abetting smuggling, conspiring to defraud the United States, currency violations, money laundering and criminal RICO violations. In the present action, Canada brings claims against defendants under RICO’s civil enforcement provision. RICO is a broadly worded statute that “has as its purpose the elimination of the infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce.” S.Rep. No. 91-617, at 76 (1969); see Statement of Findings and Purpose, Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 922, 922-23 (1970). “RICO provides that ‘[a]ny person injured in his business or property by reason of a RICO violation may bring a civil action to recover treble damages.” Metromedia Co. v. Fugazy, 983 F.2d 350, 368 (2d Cir.1992) (quoting 18 U.S.C. § 1964(c)), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). “To establish a RICO claim, a plaintiff must show: (1) a violation of the RICO statute ...; (2) an injury to business or property; and (3) that the injury was caused by the violation of [RICO].” De Falco v. Bernas, 244 F.3d 286, 305 (2d Cir.2001) (internal quotation marks and citation omitted), cert. denied, — U.S. -, 122 S.Ct. 207, — L.Ed.2d - (2001). Canada alleges that defendants violated RICO by “conducting] or participating] ... in the conduct of [an] enterprise’s affairs through a pattern of racketeering activity,” namely repeated instances of mail fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343, in violation of 18 U.S.C. § 1962(c). Second, Canada alleges a conspiracy, in violation of 18 U.S.C. § 1962(d), to violate subsections (a), (b) and (c) of section 1962. Canada explains that these RICO violations were the proximate cause of injury to its “property” because it was deprived of revenue from tobacco duties and taxes and was forced to spend money to stop defendants’ illegal activity. Defendants moved to dismiss the complaint pursuant" }, { "docid": "17911579", "title": "", "text": "August of 1991, “Misk, Bernstein and Dr. Sami had many telephone conversations” during which Misk bragged about his wealth, failed to reveal that he had engaged in bank frauds, and omitted to disclose the various legal actions commenced against him. Conspicuous by their absence are allegations of the number of calls made, the time or place of the calls, who placed them, and who received them. Without these particulars, the requirements of Rule 9(b) are not satisfied and plaintiffs’ wire fraud predicates cannot stand. d. Causation In Hecht v. Commerce Clearing House, Inc., 897 F.2d 21 (2d Cir.1990), the Second Circuit explained RICO’s causation requirement as follows: The RICO civil liability provision confers standing on any person injured in his business or property by reason of a violation of section 1962. Thus, in order to have standing, a RICO plaintiff must show: (1) a violation of section 1962; (2) injury to business or property; and (3) causation of the injury by the violation____ Because a plaintiff must show injury by the conduct constituting the violation of RICO, the injury must be caused by a pattern of racketeering activity violating section 1962 or by individual RICO predicate acts. Moreover, the RICO pattern or acts must proximately cause plaintiffs injury____ For our purposes, the RICO pattern or acts proximately cause a plaintiffs injury if they are a substantial factor in the sequence of responsible causation, and if the injury is reasonably foreseeable or anticipated as a natural consequence. Hecht, 897 F.2d at 24r-25 (internal citations omitted). Plaintiffs allege that they “stand to lose approximately $1,440,000 as a result of the illegal actions of the alleged RICO enterprise.” Compl. ¶ 129. They arrive at this figure based on a $500,000 contribution to the project, the expenditure of $130,000 in legal fees, $50,000 in “miscellaneous expenses,” and $760,000 in lost income from lease payments for assets partially owned by plaintiffs and used by the QSCC beginning in September 1993. Id. Because the complaint does not adequately specify even a single use of the mails by any defendant or other person incident to the scheme," }, { "docid": "16304202", "title": "", "text": "because he has failed to allege that the racketeering activity of which he complains was a proximate cause of his injuries. According to defendants, plaintiffs RICO claims are nothing more than an attempt to collect treble damages for what is essentially a wrongful discharge claim, not recognized under New York law. The relevant statute, 18 U.S.C. § 1964(c), provides: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. (emphasis added) In Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), the Supreme Court explained that a RICO plaintiff “only has standing [under section 1964(c) ] if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Id. at 496, 105 S.Ct. at 3285. Accord Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 279, 112 S.Ct. 1311, 1323-24, 117 L.Ed.2d 532 (1992). Thus, “the RICO pattern or [predicate] acts must proximately cause plaintiffs injury.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990). For the RICO pattern or acts to proximately cause a plaintiffs injury, they must be a “substantial factor in the sequence of responsible causation, and ... the injury [must be] reasonably foreseeable or anticipated as a natural consequence.” Id. at 23-24. See also Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 636 (2d Cir.1989) (“The phrase ‘by reason of requires that there be a causal connection between the prohibited conduct and plaintiffs injury”); Burdick v. American Express Co., 865 F.2d 527, 529 (2d Cir.1989) (per curiam) (“in order to establish standing, [plaintiff] must show that the damage to his business or property resulted from the alleged mail and securities fraud”). In evaluating the issue of proximate cause, the Second Circuit has held that a plaintiffs injuries are not proximately caused by a defendant’s alleged RICO" }, { "docid": "3972096", "title": "", "text": "understanding of the law, a new trial is warranted”). We review de novo a district court’s jury instructions. Anderson, 17 F.3d at 556. 2. Civil RICO Plaintiffs Alleging Fraud As Predicate Acts Must Establish Reliance The civil RICO statute, 18 U.S.C. § 1964(c), specifies that “[a]ny person injured ... by reason of a violation of [§ 1962] may sue therefor ... and ... recover threefold the damages he sustains.” In Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992), the Supreme Court held that the “by reason of’ language in section 1964(c) means that in order to prevail on a civil RICO claim, the plaintiff must show that the defendant’s violation was the “proximate cause” of the plaintiffs injury. See id. at 268. It is well established in this Circuit that where mail fraud is the predicate act for a civil - RICO claim, the proximate cause element articulated in Holmes requires the plaintiff to show “reasonable reliance.” In Metromedia Co. v. Fugazy, 983 F.2d 350 (2d Cir.1992), decided after Holmes, we noted that, “[i]n the context of an alleged RICO predicate act of mail fraud, we have stated that to establish the required causal connection, the plaintiff was required to demonstrate that the defendant’s misrepresentations were relied on.” Id. at 368 (citations omitted). Several of our sister Circuits have concluded that where common law, wire or securities fraud are the predicate acts for a civil RICO action, the plaintiff must establish “reasonable reliance.” See Summit Props. Inc. v. Hoechst Celanese Corp., 214 F.3d 556, 562 (5th Cir.2000) (“when civil RICO damages are sought for injuries resulting from fraud, a general requirement of reliance by the plaintiff is a eom-monsense liability limitation”); Appletree Square I, Ltd. P’ship v. W.R. Grace & Co., 29 F.3d 1283, 1286 (8th Cir.1994) (“In order to establish injury to business or property ‘by reason of a predicate act of mail or wire fraud, a plaintiff must establish detrimental reliance on the alleged fraudulent acts.”); Caviness v. Derand Res. Corp., 983 F.2d 1295, 1305 (4th Cir.1993) (“claim under [civil]" }, { "docid": "14996452", "title": "", "text": "clear that no relief could be granted under any set of facts that could be proved consistent with [plaintiffs] allegations.” McLaughlin, 962 F.2d at 190 (internal quotation marks omitted) (quoting H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)). In applying this standard, a court must read all well pleaded allegations in the complaint in the light most favorable to the plaintiff. See id.; see also De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir.1996). B. Proximate Cause RICO grants standing to pursue a civil damages remedy to “[a]ny person injured in his business or property by reason of a violation of [18 U.S.C. § 1962].” 18 U.S.C. § 1964(c). In order to bring suit under § 1964(c), a plaintiff must plead (1) the defendant’s violation of § 1962, (2) an injury to the plaintiffs business or property, and (3) causation of the injury by the defendant’s violation. See First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 767 (2d Cir.1994). Commercial’s appeal turns in part on whether its complaint satisfies the causation requirement. RICO’s use of the clause “by reason of’ has been held to limit standing to those plaintiffs who allege that the asserted RICO violation was the legal, or proximate, cause of their injury, as well as a logical, or “but for,” cause. See Holmes, 503 U.S. at 268, 112 S.Ct. 1311; see also Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990) (“By itself, factual causation ... is not sufficient.”). The requirement that a defendant’s actions be the proximate cause of a plaintiffs harm represents a policy choice premised on recognition of the impracticality of asserting liability based on the almost infinite expanse of actions that are in some sense causally related to an injury. See Sperber v. Boesky, 849 F.2d 60, 63 (2d Cir.1988). In marking that boundary, the Supreme Court has emphasized that a plaintiff cannot complain of harm so remotely caused by a defendant’s actions that imposing legal liability would transgress our “ideas of what justice" }, { "docid": "6851186", "title": "", "text": "Annuity Assoc. v. Wometco Enter., Inc., 833 F.Supp. 344, 348 (S.D.N.Y.1993); Hammelburger v. Foursome Inn Corp., 54 N.Y.2d 580, 594 n. 4, 446 N.Y.S.2d 917, 431 N.E.2d 278 (1981). Therefore, plaintiffs RICO extortion claim must fail. Plaintiff also asserts predicate acts of mail and wire fraud under RICO, alleging that the same activities on the part of Midas that form the basis for his common law' fraud claim also amount to a violation of RICO,. 18 U.S.C. § 1962(a)(b)(c)(d). See Compl. ¶¶ 233-243. Midas argues that because plaintiff cannot show reasonable reliance upon Midas’s alleged misrepresentations, he cannot establish RICO predicate acts of mail and wire fraud. This argument ignores the well-established rule that the common law requirement of justifiable reliance is not an element of wire or mail fraud under federal law. See Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 1841, 144 L.Ed.2d 35 (1999). Therefore, since the applicable mail and wire fraud statutes do not require the element of justifiable reliance, plaintiff does sufficiently allege predicate acts of racketeering activity based solely on his allegations of misrepresentations by Midas and thus satisfies the first element of a claim under RICO. Although justifiable reliance is not necessary to establish predicate acts of mail and wire fraud, plaintiff must nonetheless establish justifiable reliance to satisfy a different element of his RICO claim, that of injury to plaintiffs business or property. After a plaintiff shows that defendant has violated section 1962, he must further show that the predicate act caused the injury for which plaintiff seeks recovery. See Powers, 57 F.3d at 188; Metromedia Co. v. Fugazy, 983 F.2d 350, 368 (2d Cir.1992). RICO provides that “any person injured in his business or property by reason of a RICO violation may bring a civil action to recover treble damages.” 18 U.S.C. § 1964(c). Courts have interpreted the phrase “by reason of’ to require that there be a causal connection between the prohibited conduct and the plaintiffs injury. See Powers, 57 F.3d at 188; First Nationwide Bank, 27 F.3d at 766; Standardbred Owners Ass’n v. Roosevelt Raceway Assocs., 985" }, { "docid": "9637343", "title": "", "text": "function is not to resolve disputed issues of facts but solely to determine if such genuine issues of fact exist. We resolve all ambiguities and draw all inferences in favor of the party defending against the particular summary judgment motion in question. Rattner v. Netbum, 930 F.2d 204, 209 (2d Cir.1991); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985). A. RICO Statute of Limitations Although not entirely clear, it appears that plaintiffs § 1962(c) RICO claim alleges that defendants formed an enterprise to use non-architects fraudulently passed off as architects, to design and supervise home remodelling projects. In furtherance of their scheme, defendants allegedly committed acts of mail and wire fraud that misrepresented the professional qualifications of the employees who would design a customer’s project. In a RICO action, the injury alleged must have been proximately caused by a pattern of racketeering activity violating § 1962 or by individual RICO predicate acts. Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990). When plaintiffs allege fraudulent representations in the context of an alleged RICO predicate act of mail or wire fraud, those misrepresentations must have been relied on, Metromedia Co. v. Fugazy, 983 F.2d 350, 368 (2d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993), and plaintiffs must show that their injuries resulted from such misrepresentations. Ferndale Corp. v. Schulman Urban Dev. Assoc., 758 F.Supp. 861, 866 (S.D.N.Y.1990) (citing County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1311 (2d Cir.1990)). Here, plaintiffs must prove that they suffered injuries proximately caused by defendants’ alleged misrepresentations regarding the professional qualifications of the employees who were to design and supervise construction of their addition. The parties agree that RICO is governed by a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987). Defendants contend that plaintiffs’ § 1964(c) civil RICO claim is barred by this statute of limitations since the claim was not raised until plaintiffs filed their federal action in June 1991. Plaintiffs" }, { "docid": "9581727", "title": "", "text": "The court dismissed the complaint, and granted the plaintiff leave to file an amended complaint within twenty days. Plaintiffs in this case have made allegations that are neither vague nor incomprehensible. At a minimum, they place the defendants on notice of the charges against them and allow them sufficient opportunity to prepare a response. Nor are the allegations framed in a manner that places an inordinate burden on this court or opposing counsel. Accordingly, the court finds that the complaint meets the standards of Rule 8. III. RICO Claims Plaintiffs’ first three counts seek to recover for alleged violations of the RICO Act of 1970. The analysis begins, therefore, with the language of the statute, which provides that “[a]ny person injured in his business or property by reason of a violation of § 1962 of this chapter may sue therefor in the appropriate United States district court, and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable áttorney’s fee.” 18 U.S.C. § 1964(c). Based on this language, courts have identified three elements which plaintiffs must establish in order to have standing to sue under RICO. Plaintiffs must allege “(1) a violation of § 1962; (2) injury to business or property; and (3) causation of the injury by the violation.” Hecht v. Commerce Clearing House, 897 F.2d 21, 23 (2d Cir.1990); see also First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 728, 130 L.Ed.2d 632 (1995). Causation, for the purposes of the RICO inquiry, requires a showing of both actual or “but-for” causation and a showing of proximate causation. Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 266, 112 S.Ct. 1311, 1317, 117 L.Ed.2d 532 (1992). A RICO violation proximately causes a plaintiff injury when it is “a substantial factor in the sequence of responsible causation, and if the injury is reasonably foreseeable or anticipated as a natural consequence.” Hecht, 897 F.2d at 23. A. RICO Standing At the outset, several of the defendants contend that plaintiffs have not pleaded facts" }, { "docid": "23147424", "title": "", "text": "within a ten year period. 18 U.S.C. § 1961(5). In addition, the predicate acts must demonstrate “sufficient interrelationship and ... sufficient continuity or threat of continuity to constitute [a prohibited] pattern.” Beauford v. Helmsley, 865 F.2d 1386, 1391 (2d Cir.) (in banc), vacated and remanded, 492 U.S. 914, 109 S.Ct. 3236, 106 L.Ed.2d 584, adhered to, 893 F.2d 1433 (2d Cir.) (in banc), cert. denied, 493 U.S. 992, 110 S.Ct. 539, 107 L.Ed.2d 537 (1989); see also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985). To invoke RICO’s civil remedies, a plaintiff must have been “injured in his business or property by reason of a violation of section 1962.” § 1964(c) (emphasis added). This language has been construed to require that in order to merit standing, a civil RICO plaintiff must establish that the RICO violation at issue was a proximate cause of the injury to the plaintiffs business or property for which redress is sought. See Holmes v. Securities Investor Protection Corp., — U.S. -, -, 112 S.Ct. 1311, 1318, 117 L.Ed.2d 532 (1992); Manson v. Stacescu, 11 F.3d 1127, 1130 (2d Cir.1993); Stochastic Decisions, Inc. v. DiDomenico, 995 F.2d 1158, 1167 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 385, 126 L.Ed.2d 334 (1993); Standardbred Owners Ass’n v. Roosevelt Raceway Assocs., 985 F.2d 102, 104 (2d Cir.1993); Metromedia Co. v. Fugazy, 983 F.2d 350, 368 (2d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993); Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990); Sperber v. Boesky, 849 F.2d 60, 64 (2d Cir.1988). Dobrowolski and Trapanotto primarily rely upon Hecht in seeking reversal on this issue. In Hecht, we affirmed the dismissal of a RICO complaint brought by a discharged employee who claimed that he had been terminated because he had “blown the whistle” on mail fraud and wire fraud committed by other employees in dealing with customers’ accounts. 897 F.2d at 23. We ruled that the claimed “injury must be caused by a pattern of racketeering" }, { "docid": "7534772", "title": "", "text": "Section 1962(c) To state a claim under section 1962(c), plaintiffs must allege “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity,” Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985), that caused injury to plaintiffs’ business or property. Bankers Trust, 859 F.2d at 1102. As discussed above, plaintiffs have alleged an enterprise and a pattern of racketeering activity. Because the Court finds that plaintiffs have alleged that the Primary Defendants’ RICO conduct caused injury to plaintiffs’ business or property, the Court concludes that plaintiffs have stated a cause of action against the Primary Defendants under section 1962(c). (ii) Section 1962(b) A plaintiff alleging a violation of section 1962(b) must allege that an enterprise existed affecting interstate commerce and that the defendant acquired or maintained an interest in or control over the enterprise through a pattern of racketeering activity. Trautz v. Weisman, 809 F.Supp. 239, 245 (S.D.N.Y.1992). To state a claim under section 1962(b), plaintiffs must allege a proximate causal relationship between an acquisition of an interest in an enterprise and the damages claimed. Metromedia v. Fugazy, 983 F.2d 350, 368 (2d Cir.1992), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). As discussed above, plaintiffs have adequately alleged a RICO enterprise and a pattern of racketeering activity. Plaintiffs have also pleaded that they were injured in their business or property as a result of defendants’ acquisition or maintenance of an interest in or control of an enterprise through a pattern of racketeering. Complaint, ¶ 218. Accordingly, the Court declines to dismiss the section 1962(b) claim against the Primary Defendants. (iii) Section 1962(a) Section 1962(a) prohibits the use or investment of income received from a pattern of racketeering activity in the acquisition, establishment or operation of an enterprise affecting interstate commerce. A violation of this provision thus consists, not in the commission of the predicate acts themselves, but in using or investing the proceeds derived from a pattern of racketeering activity. Ouaknine v. MacFarlane, 897 F.2d 75, 83 (2d Cir.1990). To state a claim" }, { "docid": "8978783", "title": "", "text": "the two elements of a mail fraud offense: a scheme to defraud and use of the mails to execute the scheme. See United States v. Regent Office Supply Co., 421 F.2d 1174 (2d Cir.1970); United States v. Goldberg, 455 F.2d 479, 481 (9th Cir.), cert. denied, 406 U.S. 967, 92 S.Ct. 2411, 32 L.Ed.2d 665 (1972). Even though the mail fraud statute contains no reliance requirement, it does not necessarily follow that a plaintiff need not show reliance in order to recover under civil RICO. RICO section 1964(c) provides a private cause of action for: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. (emphasis added). The language “by reason of” imposes a causation requirement on plaintiffs. Sperber v. Boesky, 849 F.2d 60, 64 (2d Cir.1988); Grantham, 831 F.2d 596, 606 (6th Cir.1987). When the predicate acts alleged are mail and wire fraud, the question arises whether this language imposes a reliance requirement that is lacking in the mail fraud statute itself. One court has ruled that it does. In Brandenberg, the Fourth Circuit Court distinguished between the elements necessary to establish a violation of the mail fraud statute, which does not require a showing of detrimental reliance, and the elements necessary to establish injury “by reason of” a predicate act of mail fraud within the meaning of Section 1964(c). The court stated that, unlike the mail fraud statute, Section 1964(c) requires a showing by the plaintiff of plaintiff’s detrimental reliance. Brandenberg, 859 F.2d at 1188 n. 10; Grantham, 831 F.2d 596 (both mail fraud statute and RICO require a showing of detrimental reliance by plaintiff). This Court agrees with the Fourth Circuit Court to the extent that any injury suffered by Shaw must result from reliance on defendants’ alleged fraud in order to meet the causation requirements of Section 1964(c). However, this Court will not go as far as the" }, { "docid": "2362311", "title": "", "text": "by factual allegations to be considered with respect to Union defendants’ Rule 9(b) arguments. For those same reasons, those allegations also will be considered in connection with the Union defendants’ argument that their operation or management of the association-in-fact enterprise has not been pleaded adequately. Taking the allegations of the Amended Complaint as true, they sufficiently allege the Union defendants’ operation or management of the association-in-fact enterprise under Reves. Indeed, the Amended Complaint asserts that the Union defendants played a management role in that they “participated in the development and implementation of the fraudulent scheme,” and “coordinated the scheme” by contacting their members, informing them of the concerted action and directed them to take certain actions to carry out the scheme. Accordingly, the Union defendants’ motion to dismiss on this ground is denied. C. Causation Stingle and the Unions argue that the Amended Complaint fails to allege an injury “by reason of’ the RICO violation because plaintiffs could not have relied justifiably on defendants’ representations. CCP and Purcigliotti assert that, with respect to the pending eases before the Board, no injury has yet occurred and, therefore, the Amended Complaint fails to allege injury “by reason of’ a RICO violation. In order to plead a cause of action under RICO, a complaint must allege proximate cause, that is, that the predicate acts were “a substantial factor in the sequence of responsible causation” and that “the injury is reasonably foreseeable or anticipated as a natural consequence.” Hecht v. Commerce Clearing House, 897 F.2d 21, 23-24 (2d Cir.1990). Where the alleged predicate act is mail fraud, the Second Circuit has held that, to establish the required causal connection, the plaintiff must allege that defendants’ misrepresentations were relied upon. See Metromedia Co. v. Fugazy, 983 F.2d 350, 366 (2d Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). In this case, the defendants’ argument focuses on whether the plaintiffs justifiably could have relied on defendants’ alleged fraudulent hearing loss claims when much of the data now alleged to demonstrate the fraud was in the plaintiffs’ possession before they settled the claims." }, { "docid": "23598102", "title": "", "text": "recover only if injured “by reason of” a § 1962 violation. 18 U.S.C. § 1964(c) (1988). A § 1962(a) violation occurs not when the defendant engages in the predicate acts, but only when he uses or invests the proceeds of that activity in an enterprise. Consequently, to recover under § 1962(a), the plaintiff must demonstrate that his injuries were proximately caused by that violation. Courts have similarly imposed a proximate cause requirement for § 1962(c) claims, although a plaintiff may recover under that section for injury caused by the predicate acts themselves. See O’Malley v. O’Neill, 887 F.2d 1557, 1561 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990); Zervas v. Faulkner, 861 F.2d 823, 834-35 (5th Cir.1988); Brandenburg v. Seidel, 859 F.2d 1179, 1189 (4th Cir.1988); Sperber v. Boesky, 849 F.2d 60, 64-65 (2d Cir.1988); Haroco, Inc. v. American Nat’l Bank and Trust Co., 747 F.2d 384, 398 (7th Cir.1984), aff’d, 473 U.S. 606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985) (per curiam). See generally Note, After Sedima: The Lower Courts’ Use of Proximate Cause as a Limitation on Civil RICO, 16 Del. J.Corp.L. 607 (1991). Following traditional concepts of causation, we believe § 1962(a) requires the plaintiff to demonstrate that the use or investment of racketeering income was a “substantial factor” in causing the injury. As the Court of Appeals for the Second Circuit has held in connection with the § 1962(c) standing requirement, “the RICO pattern or acts proximately cause a plaintiff’s injury if they are a substantial factor in the sequence of responsible causation, and if the injury is reasonably foreseeable or anticipated as a natural consequence.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23-24 (2d Cir.1990). We believe the evidence is insufficient to create a material issue of fact as to whether defendants’ use or investment of racketeering income was a substantial factor in causing plaintiffs to pay higher prices for the degradable bags. The causal connection is tenuous at best. The direct cause of plaintiffs’ alleged injuries was the fraudulent conduct. Plaintiffs have neither alleged nor demonstrated" } ]

[ { "docid": "22656684", "title": "", "text": "the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the ease is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal, insofar as federal requirements are concerned, or. proceed to a decision on the merits, if state, law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence. to which an indigent defendant is entitled. ' This procedure will assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel. The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Previously, on January 24, 1964, petitioner, while on parole, had been arrested and convicted of the felony of burglary which was affirmed on appeal. We granted certiorari, ante, p. 264, vacated the judgment below and remanded for further" } ]

[ { "docid": "3238763", "title": "", "text": "thus far in the case. In his brief supporting his motion to withdraw, Cooperman states that he has read the entire record, consulted with Edwards’ trial counsel, attempted by two letters to contact Edwards, done significant legal research, and, after this inquiry, is of the opinion that Edwards’ appeal is wholly frivolous. Under Anders, should an attorney seek to withdraw, he must file a brief pointing the court to any argument which may arguably support an appeal. In compliance with this requirement, Cooperman suggested that the only conceivable issue on appeal would be the admission of Edwards’ confession, which was obtained by marine patrol officers in the course of their investigation. At trial Edwards’ counsel argued that his confession should be suppressed because the police allowed him to drink during the course of their investigation, and that he was intoxicated, rendering him unable to voluntarily waive his right to remain silent, and incapable of understanding the Miranda warnings given to him. Edwards’ trial counsel filed a motion to suppress his confession, and, after a hearing, the district court denied the motion to suppress. Counsel’s compliance with the Anders requirement is minimal, but sufficient. He pointed the court to the one argument which Edwards could assert on appeal, gave citation to relevant authority, and isolated the pages in the record relevant to the issue. Thus, unlike the Anders brief found insufficient in United States v. Blackwell, 767 F.2d 1486 (11th Cir.1985), the brief filed by Cooperman is sufficient to aid the court and Cooperman’s client in determining whether Cooperman is correct in asserting that the appeal is frivolous. An independent review of the record fails to reveal any issue of arguable merit. The only conceivable grounds for appeal is the failure to suppress Edwards’ incriminating statements. However, the voluntariness of a confession is a question of fact. The findings of fact on the motion to suppress should not be disturbed on appeal unless clearly erroneous. Jurek v. Estelle, 623 F.2d 929 (5th Cir.1980) (en banc), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203; 450 U.S. 1014, 101 S.Ct." }, { "docid": "18828263", "title": "", "text": "PER CURIAM: Alba Denis Zuluaga helped her boyfriend, Herson Hoyos, distribute cocaine. She pled guilty to one count of conspiracy to distribute and possess with intent to distribute between 400 and 500 grams of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(C) (1988). Chief Judge Brieant sentenced her to fifty-one months imprisonment, three years of supervised release, a drug testing and treatment program, and a mandatory special assessment of fifty dollars. She appealed from this sentence. Her appeal was first dismissed as untimely but was subsequently reinstated. Thereafter, her counsel, appointed pursuant to the Criminal Justice Act, filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there were no non-frivolous grounds for reversal. Based on his brief, counsel has moved to be relieved, and the government has moved for summary affir-mance. We grant the motion to be relieved, deny the motion for summary affir-mance, and order the appointment of new counsel. The entire argument section of the An-ders brief reads as follows: An examination of the record herein reveals no rulings by the Court regarding evidentiary or other matters which might be pursued on appeal. The sentence received by the defendant was within the applicable guideline level and the level fixed was the one most favorable to the defendant. Such a sentence is unappealable. This brief conclusory statement does not fulfill counsel’s obligations under Anders, which requires that counsel conduct a “conscientious examination” of possible grounds for appeal and submit a “brief referring to anything in the record that might arguably support the appeal,” including references both to the record and to potentially applicable legal authorities. Anders, 386 U.S. at 744, 87 S.Ct. at 1400. Counsel’s conclusory statement is inadequate under this standard. Nell v. James, 811 F.2d 100, 104 (2d Cir.1987) (requiring Anders briefs to evidence an independent and conscientious examination of the record). Counsel’s failure to submit a proper An-ders brief works two harms. First, it fails “to assist an appellate court ... in its review of a motion to affirm summarily a district" }, { "docid": "3668037", "title": "", "text": "The court ruled, contrary to the argument of the United States, that the crimes were specific-intent crimes and Stoufflet’s advice-of-counsel defense was relevant. Stoufflet then attempted to withdraw his guilty plea. Stoufflet’s newly appointed counsel contended in the motion to withdraw that Stoufflet pleaded guilty “under extreme pressure” because his former counsel advised that it was “highly probable” that the district court would grant the motion in limine filed by the United States for the trial of the 2006 charges. He stated that he was “numb” at the plea hearing and that his attorneys forced him into the plea agreement. The district court conducted a hearing on Stoufflet’s motion to withdraw his guilty plea, and Stoufflet and his former counsel testified. The district court denied the motion to withdraw and later sentenced Stoufflet to 70 months of imprisonment and 3 years of supervised release. Stoufflet filed a direct appeal, and the district court appointed appellate counsel. The appointed appellate counsel moved to withdraw her representation. See Anders, 386 U.S. 738, 87 S.Ct. 1396. In her Anders brief, counsel concluded that Stoufflet’s potential arguments on appeal were frivolous. Stoufflet filed a response to the Anders brief, in which he argued that his plea was invalid because he was unaware of all the elements of the crimes for which he was charged. He explained that he did not understand that conspiracy was a specific-intent crime until the district court denied the motion in limine in the other criminal proceeding. We granted the appointed counsel’s motion to withdraw, and we affirmed Stoufflet’s judgment of conviction and sentence. United States v. Stoufflet, 424 Fed.Appx. 881 (11th Cir.2011). We stated, in part, “Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, Stoufflet’s motion for the appointment of new counsel is DENIED, and Stoufflet’s conviction and sentence are AFFIRMED.” Id. at 881. Stoufflet next filed a pro se motion to vacate his sentence. 28 U.S.C. § 2255. He stated that he was “obliged to plead guilty” and that the “Court accepted [his] plea without informing him" }, { "docid": "19929167", "title": "", "text": "character of the Defendant and the nature of the crime, which are important § 3553(a) factors. Defendant was sentenced to 78 months. On February 9, 2006, Pulyer’s counsel filed an Anders brief arguing only that the right to appeal was waived by the agreement to plead guilty. On March 15, 2006, Pulyer submitted a pro se brief in which he argued that: (1) the sentencing guideline enhancements were unconstitutional because they were not proven beyond a reasonable doubt; and (2) his counsel was ineffective. II. Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the District Court record and “is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting [.Anders ] brief.” Third Circuit L.A.R. 109.2(a). In considering counsel’s submission, we must examine: (1) “whether counsel adequately fulfilled the rule’s requirements;” and (2) “whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). To satisfy the Anders requirements counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). The entire thrust of the Anders brief is the erroneous assertion that as part of the plea agreement Pulyer has waived all of his appellate rights. The brief did not address any potential appealable issues on the merits, nor did it explain why such issues are frivolous. Indeed, even the government pointed out that Pulyer did not waive his appellate rights, (Gov. Br. at pp. 11-12), and at sentencing the District Judge specifically advised Defendant of his right to appeal. (App. at p. 65). However, even when an Anders brief is inadequate, we may nevertheless affirm a conviction where the frivolousness of appeal is patent. See Youla, 241 F.3d at 300. We see four possible issues, including the two raised by Pulyer in his pro se brief, and we will consider each in turn. First, the District Court might have" }, { "docid": "22655602", "title": "", "text": "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 that there was no merit to the appeal. The court denied the indigent’s request for appointment of another attorney, after which the indigent filed his own brief pro se. The state responded and the indigent filed a reply brief. The conviction was affirmed. About 6 years later, the court denied the indigent’s application for writ of habeas corpus, stating that the earlier appeal had been without merit. The Su preme Court of California later denied without opinion the indigent’s petition for habeas corpus. On certiorari, the Supreme Court of the United States reversed and held that the constitutional right to counsel requires that on an indigent’s first appeal from his conviction, court-appointed counsel support the appeal to the best of his ability, requesting permission to withdraw only if he finds the case to be wholly frivolous, in which event he must file a brief referring to anything in the record that might arguably support the appeal. A “no merit” letter does not satisfy this requirement. Rather the court stated that Counsel['s] ... role as advocate" }, { "docid": "19718476", "title": "", "text": "action. Mack entered a plea of not guilty, and the case proceeded to trial before a jury in January 1986. Mack was subsequently convicted on all counts. He was sentenced to two consecutive terms of thirty years imprisonment for assault, two concurrent terms of twenty years imprisonment for robbery, and a consecutive term of life imprisonment for armed criminal action. Mack’s convictions were affirmed on direct appeal. See State v. Mack, 725 S.W.2d 78 (Mo.App.1987) (per curiam). On February 4, 1988, Mack filed a pro se motion for postconviction relief pursuant to Missouri Rule 29.15, arguing that he had received ineffective assistance of counsel for a variety of reasons. On March 17,1988, the state public defender’s office was appointed to represent Mack in his Rule 29.15 motion. Mack retained private counsel to pursue the motion, and the appointed counsel withdrew. Because Rule 29.15(f) required Mack’s retained counsel to file an amended motion within thirty days of his March 25, 1988, appearance, the Rule 29.15 court notified Mack on May 26, 1988, that no amended motion would be accepted. On June 3, 1988, Mack moved to dismiss his pro se motion without prejudice, but the Rule 29.15 court denied the motion. On June 10, 1988, the Rule 29.15 court held a hearing on the merits of Mack’s pro se motion, and denied postcon-viction relief. Mack’s attorney filed a second motion on June 29, 1988, and the Rule 29.15 court refused to consider the untimely second motion. The Missouri Court of Appeals affirmed both the refusal to consider the second motion and the denial of posteonviction relief. See Mack v. State, 775 S.W.2d 288, 290-92 (Mo.App.1989). On January 31, 1994, Mack petitioned the Missouri Supreme Court for a writ of habeas corpus, which was denied on February 22, 1994. Mack brought the instant habeas petition before the district court on April 20, 1994, and the case was referred to a magistrate judge for a report and recommendation. Without specifically addressing Mack’s claim that his postconvietion counsel had abandoned him, the magistrate judge recommended that the habeas petition be denied. Following consideration of" }, { "docid": "23625552", "title": "", "text": "we conclude that the district court did not abuse its discretion in denying Henderson’s motion to withdraw his guilty plea. Based on the foregoing, the Government’s motion to dismiss Henderson’s appeal for want of jurisdiction is DENIED. However, having carefully reviewed the record, we find that Henderson’s appeal raises no issue of arguable merit. Therefore, the motion of Henderson’s counsel to withdraw is GRANTED, and the appeal is DISMISSED. 5th CiR.R. 42.2. . 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . 18 U.S.C. § 922(g). . Henderson reserved the right to appeal any punishment imposed in excess of the statutory maximum and any upward departure from the applicable sentencing guidelines. . See 18 U.S.C. § 924(e)(1) (setting minimum punishment for persons convicted under § 922(g) with three prior convictions). .Pursuant to Anders, appointed counsel on appeal may move to withdraw from the case after fully examining the facts and the law pertaining to the case, concluding that tire appeal presents no legally non-frivolous questions, and submitting a brief explaining why the appeal presents no legally non-frivolous questions. Though we hold that we have jurisdiction to entertain Henderson's appeal, we find that the appeal itself raises no issue of arguable merit. Therefore, counsel has satisfied Anders sufficiently to allow his withdrawal from the case." }, { "docid": "7797575", "title": "", "text": "defendant “that advocacy which a nonindigent defendant is able to obtain,” and it enables “the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel.” Id. at 745, 87 S.Ct. at 1400. In contrast, the “no-merit letter” procedure invalidated in Anders, like the brief filed in this case, “affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate.” Id. The Supreme Court reiterated these views in McCoy. The court further explained the reasons for the Anders requirement that counsel submit “a brief referring to anything in the record that might arguably support the appeal.” That requirement was designed to provide the appellate courts with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability. The Anders requirement assures that indigent defendants have the benefit of what wealthy defendants are able to acquire by purchase — a diligent and thorough review of the record and an identification of any arguable issues revealed by that review. Thus, the Anders brief assists the Court in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw. 108 S.Ct. at 1902 (footnotes omitted). The Courts of Appeals have uniformly enforced the requirement that appointed counsel submit a brief on behalf of the indigent defendant presenting the strongest arguments in favor of their client supported by citations to the record and to applicable legal authority. Contrary to this uniform body of federal authority, the brief submitted on appellants’ behalf identifies no issue and contains no legal or factual analysis. Accordingly, submission of this appeal is vacated. If after a careful review of the record, appellants’ counsel concludes the appeal is frivolous he shall so advise the court and move to withdraw. The motion shall be accompanied by a supplemental brief" }, { "docid": "22181449", "title": "", "text": "a matter of course. Under this procedure, the clerk of the trial court prepares and files a modified transcript of the proceedings below; such transcript contains only the Information or Indictment, the Grand Jury Minutes, the Bailiff’s Oath, Statement and Instructions, various, orders and judgment entries of the court, but does not contain the transcript of evidence nor the briefs and argument of counsel. This, practice is used in the absence of a request on the part of counsel for a plenary review-of the case. If such a request is made, the appellant is provided an appeal on a complete record of the trial, including not only those items included in the clerk’s transcript but in addition thereto, the briefs and argument of counsel. Petitioner asked his appointed attorney to perfect a plenary .appeal and counsel gave notice therefor which, though belatedly filed, was allowed by the Iowa Supreme Court. However, counsel, apparently believing that the appeal was without merit, failed to file the entire record of petitioner’s trial although it had. been prepared by-the State and counsel had advised petitioner that he would file same. It is of note that counsel nevér moved the court for leave to withdraw from'-the case. Despite the fact that the Supreme Court had ordered the case submitted on the full record, briefs and arguments of counsel — and the record here fails to reveal any rescission of that order — the court took petitioner’s case into consideration on the clerk’s transcript alone as it was required to do under Iowa law. The conviction was affirmed by the Supreme Court of Iowa, State v. Entsminger, 137 N. W. 2d 381 (1965). This was done despite the request of the petitioner a few days before the affirmance of his conviction, that the court issue an order commanding the trial court to “transmit the certified records” to the Supreme Court for its review. We granted certiorari, 384 U. S. 1000. The Attorney General of Iowa in the utmost candor and with most commendable fairness concedes that petitioner has not received “adequate appellate review” and is entitled" }, { "docid": "22661905", "title": "", "text": "counsel to withdraw and granting petitioner 30 days in which to file.an appellate brief pro se. Id., at 37. The order further specified that the court would thereafter “independently review the record thoroughly to determine whether any error exists requiring reversal or modification of the sentence . . . .” Ibid. Thus, counsel was permitted to withdraw before the court reviewed the record on nothing more than “a conclusory statement by the appointed attorney on appeal that the case has no merit and that he will file no brief.” Moreover, although granting petitioner several extensions of time to file a brief, the court denied petitioner’s request for the appointment of a new attorney. No merits brief was filed on petitioner’s behalf. In due course, and without the assistance of any advocacy for petitioner, the Court of Appeals made its own examination of the record to determine whether petitioner received “a fair trial and whether any grave or prejudicial errors occurred therein.” Id., at 40. As an initial matter, the court noted that counsel’s certification that the appeal was meritless was “highly questionable.” Ibid. In reviewing the record and the briefs filed by counsel on behalf of petitioner’s codefendants, the court found “several arguable claims.” Id., at 41. Indeed, the court concluded that plain error had been committed in the jury instructions concerning one count. The court therefore reversed petitioner’s conviction and sentence on that count but affirmed the convictions and sentences on the remaining counts. It concluded that petitioner “suffered no prejudice” as a result of “counsel’s failure to give a more conscientious examination of the record” because the court had thoroughly examined the record and had received the benefit of arguments advanced by counsel for petitioner’s two codefendants. Ibid. Petitioner appealed the judgment of the Court of Appeals to the Ohio Supreme Court, which dismissed the appeal. Id., at 45. We granted certiorari, 484 U. S. 1059 (1988), and now reverse. II Approximately a quarter of a century ago, in Douglas v. California, 372 U. S. 353 (1963), this Court recognized that the Fourteenth Amendment guarantees a criminal appellant" }, { "docid": "22614959", "title": "", "text": "of his continuing responsibility to represent the accused after trial. See United States v. Palenius, 2 M.J. 86 (C.M.A.1977). Second, the appointed counsel for Anders declined to advance the errors Anders sought, filed a letter with the court indicating he found them to have no merit on appeal, and withdrew from the case leaving Anders with no legal representation. Here, appellate defense counsel did not withdraw; he only failed to assert the errors urged from below. Third, the California procedure was designed to eliminate, as much as possible, congestion in the judicial system occasioned by the filing of frivolous appeals by court-appointed counsel. Here, accused’s appeal is mandated by the responsibility of the Court of Military Review to review the record for errors of law and fact, whether or not errors are asserted for their consideration. Fourth, the Supreme Court was concerned with the plight of Anders after his counsel was permitted to withdraw in contrast to the situation where retained counsel would probably not have made such a request, which amounted to economic discrimination against the indigent defendant. Here, the accused is guaranteed by law appointed counsel who must advance his requests for appeal both to the Court of Military Review and, upon petition, to this Court. Consequently, the relative relationship between the appointed appellate counsel and the client in California and in the military system is abundantly dissimilar. The Uniform Code of Military Justice provides many benefits not shared by civilian defendants. What we must do is to formulate a procedure which will insure that those benefits are properly safeguarded. Appellate defense counsel has the obligation to assign all arguable issues, but he is not required to raise issues that, in his professional opinion, are frivolous. But he is, after all, an advocate, and if he errs, it should be on the side of raising the issue. There can be little harm in this practice since the Court of Military Review has the mandatory responsibility to read the entire record and independently arrive at a decision that the findings and sentence are correct in law and fact. Hence," }, { "docid": "3668038", "title": "", "text": "Anders brief, counsel concluded that Stoufflet’s potential arguments on appeal were frivolous. Stoufflet filed a response to the Anders brief, in which he argued that his plea was invalid because he was unaware of all the elements of the crimes for which he was charged. He explained that he did not understand that conspiracy was a specific-intent crime until the district court denied the motion in limine in the other criminal proceeding. We granted the appointed counsel’s motion to withdraw, and we affirmed Stoufflet’s judgment of conviction and sentence. United States v. Stoufflet, 424 Fed.Appx. 881 (11th Cir.2011). We stated, in part, “Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, Stoufflet’s motion for the appointment of new counsel is DENIED, and Stoufflet’s conviction and sentence are AFFIRMED.” Id. at 881. Stoufflet next filed a pro se motion to vacate his sentence. 28 U.S.C. § 2255. He stated that he was “obliged to plead guilty” and that the “Court accepted [his] plea without informing him that criminal intent was essential.” The district court denied the motion. Because our Court had rejected Stoufflet’s claim that his plea was involuntary when we affirmed his conviction and sentence in his direct appeal, the district court ruled that Stoufflet could not relitigate that issue in a motion to vacate his sentence. But the district court granted a certificate of appealability, which asks whether Stoufflet may again litigate whether his guilty plea was voluntary even though the appointed appellate counsel and Stoufflet presented that claim in the Anders briefing and our Court rejected it on direct appeal. II. STANDARD OF REVIEW When we review the denial of a motion to vacate, 28 U.S.C. § 2255, we review legal conclusions de novo and findings of fact for clear error. Thomas v. United States, 572 F.Bd 1300, 1303 (11th Cir.2009). III. DISCUSSION It is long settled that a prisoner is procedurally barred from raising arguments in a motion to vacate his sentence, 28 U.S.C. § 2255, that he already raised and that we rejected in his direct" }, { "docid": "8665027", "title": "", "text": "then describes certain determinations made by the district court without analyzing the reasonableness of these determinations or the sentence as a whole. A “brief conclusory statement does not fulfill counsel’s obligations under Anders, which requires that counsel conduct a ‘conscientious examination’ of possible grounds for appeal.” United States v. Zuluaga, 981 F.2d 74, 75 (2d Cir.1992) (per curiam) (quoting Anders, 386 U.S. at 744, 87 S.Ct. 1396). In addition, the failure to analyze reasonableness leaves us uncertain as to whether counsel diligently searched the record for any and all arguably meritorious claims in support of their clients’ appeals. “Counsel’s failure to submit a proper Anders brief works two harms. First, it fails to assist an appellate court ... in its review of a motion to affirm summarily a district court order or judgment.” Id. (internal quotation marks omitted). After all, “we may not independently determine the merits of an appeal, absent a properly prepared Anders brief.” Burnett, 989 F.2d at 104. “Second, and more importantly, [failure to submit a proper Anders brief] amounts to a constructive denial of counsel to appellants,” Zuluaga, 981 F.2d at 75, who are entitled to “a diligent and thorough review of the record and an identification of any arguable issues revealed by that review,” McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 439, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). An inadequate Anders brief also harms defendants by failing to provide them with complete information about the basis for counsel’s motion to withdraw. Cf. United States v. Leyba, 379 F.3d 53, 54 (2d Cir.2004) (Defense counsel must also provide the client with a copy of the An-ders brief and “a letter informing the client that he or she has the right to file a pro se brief.” (internal quotation marks omitted)). Without such information, defendants cannot effectively respond to counsel’s claims and inform us of their objections to Anders motions. Cf. Campusano v. United States, 442 F.3d 770, 776 (2d Cir.2006) (“An Anders brief at least makes available to the defendant the best possible arguments supporting his appeal or the reasons why counsel" }, { "docid": "3668049", "title": "", "text": "instead applied the rules that govern postconviction review and relief. The intervening change of law, the Supreme Court recognized, might have rendered Davis guilty for an act that the law did not make criminal. Id. at 346, 94 S.Ct. at 2805. If so, Davis’s final conviction and sentence resulted in a complete miscarriage of justice. Id. at 346-47, 94 S.Ct. at 2305. In fact, the Supreme Court has only “[a]ssum[ed] for argument’s sake that the doctrine applies” to motions to vacate, and the Court has rejected it as an “insurmountable obstacle” barring reconsideration of a prior judgment. Castro, 540 U.S. at 384, 124 S.Ct. at 793. Instead of adopting the “law of the case” terminology, we conclude that Stoufflet is procedurally barred from relitigating the voluntariness of his plea in a motion to vacate his sentence because he already raised that issue in his direct appeal. See Nyhuis, 211 F.3d at 1343. We reject Stoufflet’s argument that his objection to appointed counsel’s Anders brief should not trigger the procedural bar because the posture pits counsel against defendant. Stoufflet clearly presented the issue of the voluntariness of his plea when he responded to appointed counsel’s An-ders brief. In her Anders brief, appointed counsel evaluated the plea colloquy and Stoufflet’s motion to withdraw that plea, and she concluded that his plea was knowing and voluntary such that it would be frivolous to appeal the voluntariness of it. Stoufflet objected that his plea was not voluntary because he was misinformed about the elements of his crime. When our Court granted appointed counsel’s motion to withdraw, we agreed that her “assessment of the relative merit of [Stouf-flet’s] appeal [wa]s correct” and affirmed Stoufflet’s conviction and sentence “[b]e-cause independent examination of the entire record reveal[ed] no arguable issues of merit.” Stoufflet, 424 Fed.Appx. at 881. We necessarily rejected Stoufflet’s contention about the voluntariness of his plea. We agree with the Seventh Circuit that an issue “[presented is presented,” White v. United States, 371 F.3d 900, 902-03 (7th Cir.2004), even if raised only in the pro se response to an Anders brief. Stoufflet’s argument that there" }, { "docid": "3668050", "title": "", "text": "against defendant. Stoufflet clearly presented the issue of the voluntariness of his plea when he responded to appointed counsel’s An-ders brief. In her Anders brief, appointed counsel evaluated the plea colloquy and Stoufflet’s motion to withdraw that plea, and she concluded that his plea was knowing and voluntary such that it would be frivolous to appeal the voluntariness of it. Stoufflet objected that his plea was not voluntary because he was misinformed about the elements of his crime. When our Court granted appointed counsel’s motion to withdraw, we agreed that her “assessment of the relative merit of [Stouf-flet’s] appeal [wa]s correct” and affirmed Stoufflet’s conviction and sentence “[b]e-cause independent examination of the entire record reveal[ed] no arguable issues of merit.” Stoufflet, 424 Fed.Appx. at 881. We necessarily rejected Stoufflet’s contention about the voluntariness of his plea. We agree with the Seventh Circuit that an issue “[presented is presented,” White v. United States, 371 F.3d 900, 902-03 (7th Cir.2004), even if raised only in the pro se response to an Anders brief. Stoufflet’s argument that there has been an intervening change in the law of conspiracy, which might warrant reconsideration of his claim previously rejected, is misguided. There has been no retroactive change in law that would render our earlier consideration of Stoufflet’s claim incorrect as a matter of constitutional law or a complete miscarriage of justice. See Rozier, 701 F.3d at 684-85. Stoufflet contends that our decision in United States v. Tobin, 676 F.3d 1264 (11th Cir.2012), which we decided after his direct appeal, made clear that the sentencing judge should have instructed Stoufflet that his conduct must have been willful to constitute criminal conspiracy. But in Tobin, we did not change the law of conspiracy. Instead, we clarified that “[w]e have repeatedly recognized that a conviction [for a drug conspiracy, 21 U.S.C. § 846,] requires evidence of willfulness on the part of the defendant” and that “the defendant ] must have joined the agreement knowing the unlawful purpose of the plan.” Tobin, 676 F.3d at 1284-85 (emphasis added). Setting aside whether our decision in Tobin would constitute a “new" }, { "docid": "19718475", "title": "", "text": "MAGILL, Circuit Judge. Appellant Freddie Mack appeals the district court’s denial of a writ of habeas corpus under 28 U.S.C. § 2254. Mack argues that the district court erred in (1) failing to provide habeas relief on the ground that Mack had been abandoned by state postcon-viction counsel, (2) denying habeas relief on the merits of three alleged trial errors, and (3) failing to hold an evidentiary hearing. We affirm. I. In the early morning of July 9, 1985, Michael Tracy and Robert Schaffner, both of whom had been drinking beer and taking amphetamines, were in a car parked in the “Stroll” area of St. Louis, Missouri, which is known for prostitution. While speaking with several prostitutes, Tracy and Schaffner were attacked and robbed by three men. One of the robbers, identified at trial as petitioner Mack, shot both Tracy and Schaff-ner in the stomach. On July 30, 1985, Mack was indicted in Missouri state court on two counts of first degree assault, two counts of first degree robbery, and one count of armed criminal action. Mack entered a plea of not guilty, and the case proceeded to trial before a jury in January 1986. Mack was subsequently convicted on all counts. He was sentenced to two consecutive terms of thirty years imprisonment for assault, two concurrent terms of twenty years imprisonment for robbery, and a consecutive term of life imprisonment for armed criminal action. Mack’s convictions were affirmed on direct appeal. See State v. Mack, 725 S.W.2d 78 (Mo.App.1987) (per curiam). On February 4, 1988, Mack filed a pro se motion for postconviction relief pursuant to Missouri Rule 29.15, arguing that he had received ineffective assistance of counsel for a variety of reasons. On March 17,1988, the state public defender’s office was appointed to represent Mack in his Rule 29.15 motion. Mack retained private counsel to pursue the motion, and the appointed counsel withdrew. Because Rule 29.15(f) required Mack’s retained counsel to file an amended motion within thirty days of his March 25, 1988, appearance, the Rule 29.15 court notified Mack on May 26, 1988, that no amended motion" }, { "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": "3238764", "title": "", "text": "the district court denied the motion to suppress. Counsel’s compliance with the Anders requirement is minimal, but sufficient. He pointed the court to the one argument which Edwards could assert on appeal, gave citation to relevant authority, and isolated the pages in the record relevant to the issue. Thus, unlike the Anders brief found insufficient in United States v. Blackwell, 767 F.2d 1486 (11th Cir.1985), the brief filed by Cooperman is sufficient to aid the court and Cooperman’s client in determining whether Cooperman is correct in asserting that the appeal is frivolous. An independent review of the record fails to reveal any issue of arguable merit. The only conceivable grounds for appeal is the failure to suppress Edwards’ incriminating statements. However, the voluntariness of a confession is a question of fact. The findings of fact on the motion to suppress should not be disturbed on appeal unless clearly erroneous. Jurek v. Estelle, 623 F.2d 929 (5th Cir.1980) (en banc), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203; 450 U.S. 1014, 101 S.Ct. 1724, 68 L.Ed.2d 214 (1981). The district judge had before him all of the relevant witnesses, and was able to evaluate the facts on the credibility of those witnesses. All of the officers testified to the fact that Edwards was not intoxicated, and clearly understood what he was doing and what was said. Moreover, the detailed nature and coherence of Edwards’ statements belie the notion that he was too intoxicated to give them voluntarily. This court finds no grounds upon which we can hold that the district court’s decision on this issue was clearly erroneous. That issue aside, the record reveals no action by the district court or defense counsel upon which to base an appeal. Therefore, the motion to withdraw is granted. The conviction of the defendant is AFFIRMED. . The district court did suppress a small portion of Edwards’ statements, but not because Edwards was allegedly intoxicated. Rather, the court found that a small portion of his statement was more prejudicial than probative and excluded it on those grounds." }, { "docid": "19408296", "title": "", "text": "the court sentenced him to a prison term of 115 months. Id ., at 75-77. Again, neither Davila nor the court mentioned the in camera hearing conducted by the Magistrate Judge. Id., at 55-80. On appeal, Davila's court-appointed attorney sought leave to withdraw from the case, asserting, in a brief filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), that there were no issues of arguable merit to be raised on Davila's behalf. The Eleventh Circuit denied counsel's motion without prejudice to renewal. App. to Pet. for Cert. 6a-8a. It did so based on a discovery the appeals court made upon \"independent review\" of the record. That review \"revealed an irregularity in the statements of a magistrate judge, made during a hearing prior to Davila's plea, which appeared to urge [him] to cooperate and be candid about his criminal conduct to obtain favorable sentencing consequences.\" Id., at 7a. The court requested counsel to address whether the \"irregularity\" constituted reversible error under Federal Rule of Criminal Procedure 11(c)(1). Id., at 7a-8a. Following the court's instruction, counsel filed a brief arguing that Davila's plea should be set aside due to the Magistrate Judge's comments. In response, the Government conceded that those comments violated Rule 11(c)(1). Even so, the Government urged, given the three-month gap between the comments and the plea, and the fact that a different judge presided over Davila's plea and sentencing hearings, no adverse effect on Davila's substantial rights could be demonstrated. Pursuant to Circuit precedent, the appeals court held that the Rule 11(c)(1) violation required automatic vacatur of Davila's guilty plea. Under the Circuit's \"bright line rule,\" the court explained, there was no need to inquire whether the error was, in fact, prejudicial. 664 F.3d 1355, 1359 (C.A.11 2011) (per curiam ). We granted certiorari to resolve a Circuit conflict concerning the consequences of a Rule 11(c)(1) violation. 568 U.S. ----, 133 S.Ct. 831, 184 L.Ed.2d 646 (2013). II Rule 11(c)(1)'s prohibition of judicial involvement in plea discussions was introduced as part of the 1974 Amendment to the Rule. See Advisory Committee's" }, { "docid": "12066386", "title": "", "text": "filed with the state appellate court a document captioned “Certification of Meritless Appeal and Motion” in which the attorney certified to the court that he had carefully reviewed the record; that he found no errors requiring reversal, modification and/or vacation of the defendant’s convictions or sentence; and that he would not file a meritless appeal in the matter. In the same document, the attorney also made a motion to withdraw as counsel for the defendant. Penson, 109 S.Ct. at 348-49. The Ohio Court of Appeals permitted the attorney to withdraw and granted the defendant leave to file a pro se brief if he wished. The state court also stated that it would “independently review the record thoroughly to determine whether any error exist[ed] requiring reversal or modification of the sentence....” Thus the attorney “was permitted to withdraw before the court reviewed the record on nothing more than ‘a conclusory statement by the appointed attorney on appeal that the case ha[d] no merit and that he w[ould] file no brief.’ ” Id. at 349. The Supreme Court found that the Ohio Court of Appeals had erred in three respects with regard to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). First, the Court held that the attorney’s motion to withdraw should have been denied because his motion did not point out “anything in the record that might arguably support the appeal.” Second, the Ohio court “should not have acted on the motion to withdraw before it made its own examination of the record to determine whether counsel’s evaluation of the case was sound.” Penson, 109 S.Ct. at 351. Third, and what the Supreme Court considered most significant, the state court erred when it failed to “appoint new counsel after it had determined that the record supported ‘several arguable claims.’ ” Id. at 351. The troublesome issue which concerned the Supreme Court concerning this error was that the Ohio court passed upon the merits of the defendant’s case without the benefit of an advocate’s brief, thus depriving itself and the defendant of the “benefit of an adversary" } ]

[ { "docid": "21221939", "title": "", "text": "GROOMS, District Judge. Appellant, Aloe Creme Laboratories, Inc., filed this action below under 35 U.S.C.A. § 146 and 15 U.S.C.A. § 1071 seeking a reversal of a ruling of the United States Patent Office denying its claim to the right to the trademark registration of “ALO-CREME” and “ALO-CREME AFTER TAN.” Appel-lee, The Texas Pharmacal Company, filed a counterclaim under Section 1338(b) of Title 28 U.S.C.A. and Section 1116 et seq. of Title 15 U.S.C.A. to enjoin the use of those names and “ALOE CREME”, as trademarks, tradenames or parts thereof on the ground that each infringes its trademark, “ALLER-CREME,” and “ALLERCREME SAF-TAN,” and that their use constitutes unfair competition. Upon the evidence presented at the trial and upon that before the Patent Office, the trial court affirmed the Patent Office ruling that its action was supported by susbtantial evidence and was not clearly erroneous. The court also ruled that because of the evidence of actual deception and confusion, and the further likelihood of confusion, appellee was entitled to an injunction prohibiting the use of “ALO-CREME,” “ALO-CREME AFTER TAN,” and “ALOE CREME” as trademarks on the ground that each infringed appellee’s prior registered trademark, “ALLERCREME,” and that their use amounted to unfair competition in trade. The name “ALLERCREME” was registered on May 30, 1944, and “ALLER-CREME SAF-TAN” on January 19, 1954. Appellant’s mark, “ALO-CREME” was registered on June 1, 1954, and on January 31, 1955, appellant filed its application for registration of “ALO-CREME AFTER TAN.” Appellant contends that its mark “ALO-CREME” was chosen because “ALO” suggests the Aloe Veraplant, the main active ingredient of its preparations; that it has emphasized the use of the Aloe Vera gel in the use, sale and advertising of its products so that they are characterized by that plant; that there has been no actual confusion between its products and those of appellee, and that there is such a substantial difference between its goods and those of appellee and between their marks and packages that there is no likelihood of confusion. Appellee contends that the presence or lack of ingredients has no bearing on the registration" } ]

[ { "docid": "11350343", "title": "", "text": "Judge Levin so held in a similar action. Libbey-Owens-Ford Glass Co. v. Shatterproof Glass Corp. (E.D.Mich., 1970), 165 USPQ 335, 336. Defendants urge several reasons why the doctrine of collateral estoppel should not be applied: (1) The overwhelming weight of judicial authority precludes invoking a CCPA decision in a cancellation proceeding as collateral estoppel in a subsequent trademark infringement suit. (2) The issue of likelihood of confusion in an infringement suit is guided by different legal principles than the issue of likelihood of confusion in a cancellation proceeding. (3) The cancellation proceeding was tried by an administrative board with limited jurisdiction, not a true court. (4) The marks and goods involved in the present suit are different than the marks and goods involved in the cancellation proceeding. (5) There has been a change in circumstances. (6) The decision was influenced by plaintiff’s fraud. (7) The two findings, urged by plaintiff as binding on this Court are only mediate data from which likelihood of confusion, the ultimate fact, may be inferred. They will be discussed in order. (D Defendants contend the overwhelming weight of judicial authority holds a CCPA decision in a cancellation proceeding does not apply as a collateral estoppel in a subsequent trademark infringement suit. I cannot agree. In Postum Cereal Co. v. California Fig Nut Co. (1927), 272 U.S. 693, 47 S.Ct. 284, 71 L.Ed. 478, the Supreme Court held the opinion of the Court of Patent Appeals was an administrative decision of the patent office, rather than a judicial judgment. As a result of this decision, it was held in John Morrell & Co. v. Doyle (7th Cir., 1938), 97 F.2d 232, 235, that a decision of the CCPA on the issue of likelihood of confusion in an application for registration of a trademark was not a final determination of the same issue in an infringement action. However, in Brenner v. Manson (1965), 383 U.S. 519, 86 S.Ct. 1033, 16 L.Ed.2d 69, involving the Supreme Court’s right to review a CCPA decision by cer tiorari, the Court held the 1948 amendment to 28 U.S.C. § 1256 gave" }, { "docid": "11350344", "title": "", "text": "order. (D Defendants contend the overwhelming weight of judicial authority holds a CCPA decision in a cancellation proceeding does not apply as a collateral estoppel in a subsequent trademark infringement suit. I cannot agree. In Postum Cereal Co. v. California Fig Nut Co. (1927), 272 U.S. 693, 47 S.Ct. 284, 71 L.Ed. 478, the Supreme Court held the opinion of the Court of Patent Appeals was an administrative decision of the patent office, rather than a judicial judgment. As a result of this decision, it was held in John Morrell & Co. v. Doyle (7th Cir., 1938), 97 F.2d 232, 235, that a decision of the CCPA on the issue of likelihood of confusion in an application for registration of a trademark was not a final determination of the same issue in an infringement action. However, in Brenner v. Manson (1965), 383 U.S. 519, 86 S.Ct. 1033, 16 L.Ed.2d 69, involving the Supreme Court’s right to review a CCPA decision by cer tiorari, the Court held the 1948 amendment to 28 U.S.C. § 1256 gave the CCPA the status of an Article III Constitutional Court, saying: “Thus the decision sought to be reviewed is that of an Article III Court. It is ‘judicial’ in character. It is not merely an instruction to the Commissioner or part of the ‘administrative machinery’ of the Patent Office. It is final and binding in the usual sense.” Defendants seek some comfort from a footnote to the above statement in which the Court states: “This is not to say that a CCPA determination that an applicant is entitled to a patent precludes a contrary result in a subsequent infringement suit, any more than issuance of a patent by the Patent Office or the decision in an earlier infringement action against a different ‘infringer’ has that effect.” However, the situations referred to in the footnote were either ex parte or third party proceedings in which the litigants did not have their day in court. In the instant case the issues were fully explored in an administrative hearing between these same parties and the decision was affirmed" }, { "docid": "11350349", "title": "", "text": "tried and determined in the CCPA decision. Defendants contend there are two separate bodies of law dealing with the issue of likelihood of confusion. One dealing with the right to register a mark (patent office) and the other dealing with the right to use or enjoin the use of a mark (federal courts). Defendants contend patent office decisions do not deal with the realities of the market place, but determine the likelihood of confusion in the artificial context of the wording of the application to register. While it is true that use of a trademark in established trade areas is sometimes referred to as a factor to be considered in determining “likelihood of confusion,” and courts have stated there is no likelihood of confusion if the trade areas are different, I believe, for our purposes here, it is better to consider this factor in connection with the extent of injunctive relief to which plaintiff may be entitled. With this factor eliminated, “likelihood of confusion” in the cancellation proceedings and this infringement case have the same meaning. The determinations that “Lure” so resembles “the registered mark ‘Pestlur’ as to be likely, when applied to Kemin goods, to cause confusion, or to cause mistake, or to deceive,” Kemin Industries, Inc. v. Flavor Corporation of America, 440 F.2d 1375, and that the products flow in similar channels of trade are binding on this court. The statutory language is substantially the same. The registration statute, 15 U.S.C. § 1052, provides: “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it * * * (D) Consists of or comprises a mark which so resembles a mark registered in the Patent Office or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, tuhen applied to the goods of the applicant, to cause confusion, or to cause mistake or to deceive.” The infringement statute, 15. U.S.C. § 1114, provides in part: “Any person who" }, { "docid": "18204575", "title": "", "text": "affd. 335 F.2d 72 (5th Cir. 1964). The fact that the Patent Office does not have jurisdiction to determine whether the use of a mark should be enjoined in no way affects the pertinence and applicability of its decisions on the ultimate question of likelihood of confusion. As pointed out by Assistant Commissioner of Patents Leeds in Ex Parte Crown Beverage Corp., 102 U.S. P.Q. 312 (Commr. of Pat. 1954): “(2) It is true that a court in a trade mark suit determines the right to use and the Patent Office determines the right to register, but it is also true that in determining the right to register, the Patent Office must necessarily pass upon the right to use. The difference between suits in the courts and in the Office lies not in what is passed upon, but in the action taken. The court in disposing of a trade mark suit, performs a judicial act, i. e., it enjoins or refuses to enjoin further use of the involved mark; whereas, the Patent Office performs an administrative act, i. e., it registers or refuses to register the involved mark.” (At p. 314.) Accordingly, the court recognizes that the Patent Office’s rejection of the defendant’s application for a federal trademark registration constitutes meaningful support for the court’s independent judgment on the question of “likelihood of confusion”. 21. A factor in weighing the potential confusion that may be created in the mind of the consumer concerning the sponsorship of BLACK LABEL cigarettes is the general current trend of previously specialized American industries to diversify their activities and to engage in production of different types of products. Among these industries is the tobacco industry. To be sure, the question has usually been phrased as to whether the public will think that the new product with the same trademark is manufactured or produced by the owner of the registered trademark that has been in use. Sterling Drugs, Inc. v. Lincoln Laboratories, Inc., 322 F.2d 968, 972 (7th Cir. 1963). Given the general situation where the public is generally unaware of the specific corporate structure of" }, { "docid": "18410973", "title": "", "text": "principle of such an estoppel may be stated as follows: Where there is a second action between parties, or their privies, who are bound by a judgment rendered in a prior suit, but the second action involves a different claim, cause, or demand, the judgment in the first suit operates as a collateral es-toppel as to, but only as to, those matters or points which were in issue or controverted and upon the determination of which the initial judgment necessarily depended, (footnotes omitted) 1B J. Moore & T. Currier, Moore’s Federal Practice ¶ 0.441(2), at 3777 (2d ed. 1965). The parties in this appeal are the same as those who appeared before the CCPA, it was within the CCPA’s jurisdiction to determine whether “PESTLUR” and “LURE” were so similar as to create a likelihood of confusion and to refuse registration, and the CCPA judgment is final. Therefore, two questions remain in determining whether to apply collateral estoppel: (1) whether the factual issue of likelihood of confusion is the same in both actions and (2) whether the CCPA is a court of competent jurisdiction to bind the parties in a subsequent action. A. Identity of Issues The legal issue in a cancellation proceeding is the right to register a mark. 15 U.S.C. § 1052(d) provides that a mark may not be registered if it: . [cjonsists of or comprises a mark which so resembles a mark registered in the Patent Office or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when applied to the goods of the applicant, to cause confusion, or to cause mistake, or to deceive. . . . (emphasis added) A finding of likelihood of confusion in a cancellation proceeding requires cancellation of the registration; use of the mark is irrelevant. SCM Corp. v. Royal McBee Corp., 395 F.2d 1018, 55 CCPA 1179 (1968). The issue in an infringement action is whether the use of the respective marks in commerce results in infringement. Under section 32 of the Lanham Act, infringement of a registered mark results" }, { "docid": "8548242", "title": "", "text": "witnesses are not experts; expert testimony on the question of similarity is not competent. ‘The opinion of the witnesses in that regard * * * must yield to the more positive evidence afforded by the exhibits.’ On the other hand, evidence of actual instances of deception, though not required, is ‘always competent, and often illuminative.’ But opinion testimony may help to corroborate testimony of witnesses who are actually confused. * * ” Nims, Unfair Competition and TradeMarks, Vol. 2, pp. 1022-1023. (Emphasis supplied.) . Note 58, supra. . DX 7, Paper No. 110, Stipulation dated June 14, 1906. See also DX 7, Paper No. 28, wherein Wright & Taylor would not subscribe to a similar stipulation advanced by Bluthenthal, Cushman . and Mayer. . DX 4. In Wardall v. Camden County Beverage Co., 45 U.S.P.Q. 530, 531 (1940) the Patent Office held that ale and whiskey are goods of the same descriptive properties: “Appellant’s registration is for whiskey, and appellee’s application specifies only ale. These goods, though specifically different, are goods of the same descriptive properties, and, in considering the likelihood of confusion resulting from the concurrent use of the marks on the goods involved, it is proper to give consideration to the fact that purchasers frequently order and buy whiskey and ale by the drink and without seeing the labels or trade-marks. * * * ” . “Charter Oak” was registered March 13, 1934 (note 7, supra); “Old Charter,” February 19, 1935 (note 10, supra). . The Governor and Company of Adventurers of England Trading into Hudson’s Bay. . Ex parte Hudson’s Bay Co., 36 U.S.P.Q. 458 (1938) Asst. Commr.; 37 U.S.P.Q. 831 (1938) Asst. Commr. . “Applicant appeals from the refusal of the Examiner of Trade Marks to register the words ‘Boyal Charter’ as a trade mark for whisky and brandy in view of a prior registration of the words ‘Old Charter’ for use with whisky.” (36 U.S. P.Q. 458.) No ex parte proceeding between Hudson’s Bay “Boyal Charter” and Continental’s “Charter Oak” has been brought to the attention of the court nor has independent research disclosed one." }, { "docid": "11350348", "title": "", "text": "and prior registered marks. This determination, however, can have no direct influence upon our decision herein. We are concerned solely with the common law rights between the two parties who are now before the court.” Apparently registration was refused in an ex parte administrative action. These parties were not involved in an adversary hearing nor was an appeal taken to the CCPA. No determination had yet been made in a controversy between the two parties which would have had the effect of a collateral estoppel. In my opinion the SweeTarts case does not support defendants’ contention here. Libbey-Owens-Ford Glass Co. v. Shatterproof Glass Corp. (E.D.Mich., 1970), 165 USPQ 335, 336, reached the court in much the same manner as the instant case. Judge Levin, in a well supported opinion, reached the conclusion that “issues and questions of fact which were actually litigated and determined by the CCPA are conclusive in this action.” ■ I agree and so hold. (2) The next question is to determine whether the issues involved in the instant case were actually tried and determined in the CCPA decision. Defendants contend there are two separate bodies of law dealing with the issue of likelihood of confusion. One dealing with the right to register a mark (patent office) and the other dealing with the right to use or enjoin the use of a mark (federal courts). Defendants contend patent office decisions do not deal with the realities of the market place, but determine the likelihood of confusion in the artificial context of the wording of the application to register. While it is true that use of a trademark in established trade areas is sometimes referred to as a factor to be considered in determining “likelihood of confusion,” and courts have stated there is no likelihood of confusion if the trade areas are different, I believe, for our purposes here, it is better to consider this factor in connection with the extent of injunctive relief to which plaintiff may be entitled. With this factor eliminated, “likelihood of confusion” in the cancellation proceedings and this infringement case have the same" }, { "docid": "18204573", "title": "", "text": "the ease, during the period between June 20, 1967 and July 6, 1967. Apart from the very first sale, all the subsequent sales by Philip Morris were made with actual knowledge that Car-ling claimed rights in the trademark “Black Label”, and that Carling intended to oppose the registration application of Philip Morris. 19. On or about November 4, 1965 the defendant’s formal application for the registration of the mark “BLACK LABEL” as a trademark for cigarettes was filed in the United States Patent Office. By office action of the Patent Office dated June 27, 1966, the application was rejected. A response to this office action was filed by the defendant with the United States Patent Office on or about December 23, 1966. By further office action mailed January 31, 1967, the refusal to register the mark “BLACK LABEL” for the defendant herein was made final by the Examiner. On or about July 11, 1967 an appeal was taken from the final office action of the Examiner to the Trademark Trial and Appeal Board of the Patent Office. No decision has been rendered on that appeal. However, the Examiner’s final refusal declared: “The trademark Black Label is very well known for beer and it is not believed proper for a newcomer to start using the mark for such a related prod- net as cigarettes. Most drinkers of Black Label beer, or of course any beer, would be smoking cigarettes as they drink the beer. The two go hand in hand into the same mouth and it is consequently not seen how consumer confusion as to source could be avoided.” 20. While the various Patent Office decisions referred to are not binding upon this court, they are certainly entitled to the most respectful consideration because of the Patent Office’s day-to-day expertise in adjudicating cases wherein the ultimate question decided is the question of “likelihood of confusion” as that term is employed in various parts of the Lanham Act. John Morrell & Co. v. Doyle, 97 F.2d 232 (7th Cir. 1938); Aloe Creme Laboratories, Inc. v. Texas Pharmacal Co., 213 F.Supp. 125 (W.D.Tex.1963)," }, { "docid": "11350347", "title": "", "text": "Eureka Williams Corp. (7th Cir., 1949), 174 F.2d 649, relied on the Morrell case and preceded the Supreme Court decision in Brenner v. Manson. So did the decision in Lucien LeLong, Inc. v. Dana Perfumes (N.D.Ill., 1955), 138 F.Supp. 575. In addition, the LeLong case did not proceed to final judgment. A suit brought in the United States District Court to review the Cancellation Order of the Commissioner of Patents was dismissed voluntarily. Defendants also rely on certain excerpts from SweeTarts v. Sunline, Inc. (8th Cir., 1967), 380 F.2d 923, 925, in which the Court said: “A trademark search was made in the United States Patent Office, and the search turned up the name ‘Sweetheart’ for candy products, ‘Sweetart’ for cranberries, and plaintiff’s ‘SweeTarts’ for dried prunes. Smith decided to take a ‘businessman’s risk’ and use the mark ‘SweeTarts’.” Footnote 1 stated: “Defendant corporation sought to register its mark with the United States Patent Office in November 1963. Registration was refused on the basis that there would be a likelihood of confusion between defendants’ mark and prior registered marks. This determination, however, can have no direct influence upon our decision herein. We are concerned solely with the common law rights between the two parties who are now before the court.” Apparently registration was refused in an ex parte administrative action. These parties were not involved in an adversary hearing nor was an appeal taken to the CCPA. No determination had yet been made in a controversy between the two parties which would have had the effect of a collateral estoppel. In my opinion the SweeTarts case does not support defendants’ contention here. Libbey-Owens-Ford Glass Co. v. Shatterproof Glass Corp. (E.D.Mich., 1970), 165 USPQ 335, 336, reached the court in much the same manner as the instant case. Judge Levin, in a well supported opinion, reached the conclusion that “issues and questions of fact which were actually litigated and determined by the CCPA are conclusive in this action.” ■ I agree and so hold. (2) The next question is to determine whether the issues involved in the instant case were actually" }, { "docid": "18071973", "title": "", "text": "a distinction is dispositive. While the use of Laurice & Co. in the context of a trade name may suggest that consumer confusion between the parties’ products is less likely, the inquiry does not end there. . The Court notes two different approaches to applying the Lapp factors in the context of deciding a motion for summary judgment. In Kinbook, LLC v. Microsoft Corp., 866 F.Supp.2d 453 (E.D.Pa.2012), the court went factor by factor, evaluating whether evidence on the record allowed a reasonable jury to weigh each factor for Or against a finding of likelihood of confusion. By contrast, in Chase Manhattan Bank, USA, N.A. v. Freedom Card, Inc., 333 F.Supp.2d 239 (D.Del.2004), the court applied each Lapp factor separately before determining whether, on balance, there was sufficient evidence from which a reasonable jury could find a likelihood of confusion. The Court finds that the approach taken in Chase Manhattan Bank provides a clearer path in this case. In any event, under either approach, the result in this case would be the same. . In fact, where the two products in question are generally not sold side-by-side, a court should endeavor to “move into the mind of the roving consumer.” A & H Sportswear, 237 F.3d at 216 (citing Ciba-Geigy Corp. v. Bolar Pharm. Co. Inc., 747 F.2d 844, 851 (3d Cir.1984)). . Plaintiff points the United States Patent and Trademark Office’s reasoning in denying Defendant Rahme’s application to register “Laurice\" as a trademark, that it was too similar and thus likely to be confused with Plaintiff’s \"Everlina & Lauriee” mark in the sale of perfumes and beauty products. PL's Resp. Mot. Summ. L, Ex. 110, U.S. Patent and Trademark Office Action, EOF No. 86-2. The Court finds the outcome of Rahme's trademark application relevant but not dis-positive to the question of likelihood of confusion or the sub-question of similarity between Plaintiff’s and Defendants’ marks. The Trademark Office determined that if Defendant began using \"Lauriee & Co.” as a trademark it would create a likelihood of confusion with Plaintiff's marks. However, he Trademark Office did not consider whether Defendants are" }, { "docid": "18410975", "title": "", "text": "when an unregistered mark, as used in commerce, is “likely to cause confusion, or to cause mistake, or to deceive.” See Sleeper Lounge Co. v. Bell Manufacturing Co., 253 F.2d 720 (9th Cir. 1958). Whether the marks, as applied to their respective products, are likely to cause confusion must be determined in both proceedings. Since the fact of likelihood of confusion is singularly determinative in a cancellation proceeding and that fact is likewise one of the essential elements in an infringement action, the identity of issue requirement is met. B. Court of Competent Jurisdiction There is and can be no dispute that the CCPA is a court of competent jurisdiction to determine likelihood of confusion in a cancellation proceeding. The question is whether factual findings should be binding on the parties in a cause of action over which it could not have jurisdiction. In John Morrell & Co. v. Doyle, 97 F. 2d 232 (7th Cir.), cert. denied, 305 U.S. 643, 59 S.Ct. 146, 83 L.Ed. 415 (1938), the court held that CCPA determinations were not entitled to collateral estoppel effect in subsequent infringement actions because the CCPA was not an Article III court. When Morrell was decided in 1938, the CCPA was merely an administrative arm of the Patent Office. Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, 47 S.Ct. 284, 71 L.Ed. 478 (1927). Subsequently, however, in 1948, Congress enacted 28 U.S.C. § 1256, permitting certiorari review by the Supreme Court of decisions of the CCPA. In 1958, Congress made the CCPA an Article III court, 28 U.S.C. § 211. Finally, in Brenner v. Manson, 383 U.S. 519, 86 S.Ct. 1033, 16 L.Ed.2d 619 (1967), the Supreme Court reviewed the status of the CCPA and declared their decisions “final and binding in the usual sense.” 383 U.S. at 526, 86 S.Ct. at 1037. Postum was declared to have “no vitality in the present setting.” 383 U. S. at 527, 86 S.Ct. at 1038. The rationale for Morrell expired with Postwm. We therefore hold that where the CCPA has found a likelihood of confusion between two" }, { "docid": "18204574", "title": "", "text": "Patent Office. No decision has been rendered on that appeal. However, the Examiner’s final refusal declared: “The trademark Black Label is very well known for beer and it is not believed proper for a newcomer to start using the mark for such a related prod- net as cigarettes. Most drinkers of Black Label beer, or of course any beer, would be smoking cigarettes as they drink the beer. The two go hand in hand into the same mouth and it is consequently not seen how consumer confusion as to source could be avoided.” 20. While the various Patent Office decisions referred to are not binding upon this court, they are certainly entitled to the most respectful consideration because of the Patent Office’s day-to-day expertise in adjudicating cases wherein the ultimate question decided is the question of “likelihood of confusion” as that term is employed in various parts of the Lanham Act. John Morrell & Co. v. Doyle, 97 F.2d 232 (7th Cir. 1938); Aloe Creme Laboratories, Inc. v. Texas Pharmacal Co., 213 F.Supp. 125 (W.D.Tex.1963), affd. 335 F.2d 72 (5th Cir. 1964). The fact that the Patent Office does not have jurisdiction to determine whether the use of a mark should be enjoined in no way affects the pertinence and applicability of its decisions on the ultimate question of likelihood of confusion. As pointed out by Assistant Commissioner of Patents Leeds in Ex Parte Crown Beverage Corp., 102 U.S. P.Q. 312 (Commr. of Pat. 1954): “(2) It is true that a court in a trade mark suit determines the right to use and the Patent Office determines the right to register, but it is also true that in determining the right to register, the Patent Office must necessarily pass upon the right to use. The difference between suits in the courts and in the Office lies not in what is passed upon, but in the action taken. The court in disposing of a trade mark suit, performs a judicial act, i. e., it enjoins or refuses to enjoin further use of the involved mark; whereas, the Patent Office performs an" }, { "docid": "18204576", "title": "", "text": "administrative act, i. e., it registers or refuses to register the involved mark.” (At p. 314.) Accordingly, the court recognizes that the Patent Office’s rejection of the defendant’s application for a federal trademark registration constitutes meaningful support for the court’s independent judgment on the question of “likelihood of confusion”. 21. A factor in weighing the potential confusion that may be created in the mind of the consumer concerning the sponsorship of BLACK LABEL cigarettes is the general current trend of previously specialized American industries to diversify their activities and to engage in production of different types of products. Among these industries is the tobacco industry. To be sure, the question has usually been phrased as to whether the public will think that the new product with the same trademark is manufactured or produced by the owner of the registered trademark that has been in use. Sterling Drugs, Inc. v. Lincoln Laboratories, Inc., 322 F.2d 968, 972 (7th Cir. 1963). Given the general situation where the public is generally unaware of the specific corporate structure of those whose products it buys, but is aware that corporate diversification, mergers, acquisitions and operation through subsidiaries is a fact of life, it is reasonable to believe that the appearance of “Black Label” on cigarettes could lead to some confusion as to the sponsorship of EITHER or both the cigarettes and the beer. Whether the public concludes (if it really draws a specific conclusion) that Carling Black Label Beer may have become connected with Philip Morris, or that Carling may now be putting out cigarettes is immaterial. As the Fifth Circuit Court of Appeals recently noted in Continental Motors Corp. v. Continental Aviation Corp., 375 F.2d 857 (1967), this is a dynamic, developing field of the law, and the court must consider events in the business world and the public inpact of name association. 22. The final factor in any estimate of the likelihood of confusion is the particular manner in which the newcomer proposes to use the mark. The cigarette pack by Philip Morris for BLACK LABEL cigarettes has three colors: red, white and" }, { "docid": "23468558", "title": "", "text": "likelihood of confusion. Upon appeal this holding was affirmed hy the Commissioner of Patents, and upon further appeal the Court of Customs and Patent Appeals, under date of March 29, 1937, affirmed the,decision of the Commissioner of Patents. Doyle v. John Morrell & Company, 88 F.2d 721. Plaintiffs bill pleads the decisions of the Patent Office tribunals, including that of the Court of Customs and Patent Appeals, and urges the position that the decision of that court is final and res adjudicata in the instant suit, and that as a result thereof, defendants are estopped to urge and present evidence in an attempt to show there is no likelihood of confusion in trade between the respective parties. The District Court sustained plaintiff’s contention (John Morrell & Co. v. Doyle et al., 20 F.Supp. 110) and found as a conclusion of law: “Where the Patent Office is authorized by statute to decide certain issues and the parties submit the jurisdiction and the issues are decided, the findings become res adjudicata as to the issue of fact and law in.a technical trade-mark infringement suit where the parties, the m'arks, and the goods are the same.” We must first dispose of the question as to whether this is a correct pronouncement of law. In thus determining, it is material, but perhaps not conclusive to ascertain whether the issue before the Court of Customs and Patent Appeals was the same as that here presented. There, as wé understand, the court was considering merely the words Red Heart and Strongheart unaccompanied by other features. The court on page 721 of 88 F.2d said: “As the issue comes to us, the only question to be determined is that of likelihood of confusion in trade by reason of the similarity of the marks. Upon this we think there is small room for doubt.” It seems apparent that the court did not consider the manner in which defendants’ mark was used, but was dealing merely with the naked word Strongheart. Thus, on page 722, it is said: “These pictures, however, being no part of the marks, are not" }, { "docid": "18410974", "title": "", "text": "the CCPA is a court of competent jurisdiction to bind the parties in a subsequent action. A. Identity of Issues The legal issue in a cancellation proceeding is the right to register a mark. 15 U.S.C. § 1052(d) provides that a mark may not be registered if it: . [cjonsists of or comprises a mark which so resembles a mark registered in the Patent Office or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when applied to the goods of the applicant, to cause confusion, or to cause mistake, or to deceive. . . . (emphasis added) A finding of likelihood of confusion in a cancellation proceeding requires cancellation of the registration; use of the mark is irrelevant. SCM Corp. v. Royal McBee Corp., 395 F.2d 1018, 55 CCPA 1179 (1968). The issue in an infringement action is whether the use of the respective marks in commerce results in infringement. Under section 32 of the Lanham Act, infringement of a registered mark results when an unregistered mark, as used in commerce, is “likely to cause confusion, or to cause mistake, or to deceive.” See Sleeper Lounge Co. v. Bell Manufacturing Co., 253 F.2d 720 (9th Cir. 1958). Whether the marks, as applied to their respective products, are likely to cause confusion must be determined in both proceedings. Since the fact of likelihood of confusion is singularly determinative in a cancellation proceeding and that fact is likewise one of the essential elements in an infringement action, the identity of issue requirement is met. B. Court of Competent Jurisdiction There is and can be no dispute that the CCPA is a court of competent jurisdiction to determine likelihood of confusion in a cancellation proceeding. The question is whether factual findings should be binding on the parties in a cause of action over which it could not have jurisdiction. In John Morrell & Co. v. Doyle, 97 F. 2d 232 (7th Cir.), cert. denied, 305 U.S. 643, 59 S.Ct. 146, 83 L.Ed. 415 (1938), the court held that CCPA determinations were" }, { "docid": "20098695", "title": "", "text": "equal syllables, and “in sound, appearance, and significance are similar,” confusion would be likely to result. The commissioner emphasized the fact that gasoline is merchandise in the purchase of which there is frequently little care exercised. As between the parties hereto, the prior use and ownership of the mark “POWERINE” by the opposer is conceded. The use of the mark “POWERINE” by opposer and its predecessor began in 1912 while applicant’s first use of its mark Avas in 1933. The applicant has appealed here and points out that under the stipulated facts the terms “POWERITE,” “POWERLENE,” “POWERO,” “POWERFLASH,” “POWERFUEL,” and TOWER-TZED” Avere in use and registered in the Patent Office as trade-marks for gasoline at the time it adopted its mark. Applicant argues that in vieAv of the fact that the term “POWER” Avas a descriptive term Avhich anyone had the right to use and Avliich Avas extensively used, the public Avould distinguish the marks of the parties hereto solely from the suffixes “INE” and “MAX.” It argues that this and other courts haA^e held that it is proper to disassociate the descriptive part of the trade-mark from the remainder of the same and to ignore the former in determining whether or not there is likelihood of confusion. We think the commissioner arrived at the correct conclusion and are of the opinion that the decision of this case is controlled by four well-settled principles which we enumerate as follows: First. In determining the similarity of trade-marks and the likelihood of confusion resulting from the concurrent use thereof, dissection of the marks is improper. The marks must be viewed in their entirety. The Celotex Co. v. Arthur Edward Millington, 18 C. C. P. A. (Patents) 1484, 49 F. (2d) 1053; Apex Electrical Mfg. Co. v. Landers, Frary, and Clark, 17 C. C. P. A. (Patents) 1184, 41 F. (2d) 99; Pepsodent Co. v. Comfort Mfg. Co., 23 C. C. P. A. (Patents) 1224, 83 F. (2d) 906. Second. In a proceeding of this character, the Patent Office and this court must regard a registered trade-mark as valid, and if the mark" }, { "docid": "22076934", "title": "", "text": "liberal,” dispensing with “mere technical prohibitions and arbitrary provisions” and modernizing the trademark statutes “so that they will conform to legitimate present-day business practice.” The basic goal of the Act, which dealt with a good deal more than registration, was “the protection of trademarks, securing to the owner the good will of his business and protecting the public against spurious and falsely marked goods.” Accordingly, we consider the pre-Lanham Act decisions presented here to be inapt. Sec. 2 (15 U.S.C. § 1052), in pertinent part reads: No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it * * * * * * (d) Consists of or comprises a mark which so resembles a mark registered in the Patent Office or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when applied to the goods of the applicant to cause confusion, or to cause mistake or to deceive: * * * Under the statute the Commissioner must refuse registration when convinced that confusion is likely because of concurrent use of the marks of an applicant and a prior user on their respective goods. The phrase “on account of its nature” in Sec. 2 clearly applies to the “resembles” element of See. 2(d). But the question of confusion is related not to the nature of the mark but to its effect “when applied to the goods of the applicant.” The only relevant application is made in the marketplace. The words “when applied” do not refer to a mental exercise, but to all of the known circumstances surrounding use of the mark. The Decisional Process The ultimate question of the likelihood of consumer confusion has been termed a question of fact. Coca-Cola Company v. Snow Crest Beverages, Inc., 162 F.2d 280 (1st Cir. 1947), cert. den. 332 U.S. 809, 68 S.Ct. 110, 92 L.Ed. 386 (1947). If labeled a mixed question or one of law, it is necessarily drawn from" }, { "docid": "7355486", "title": "", "text": "The plaintiff therefore has not discharged its burden in showing by substantial evidence that the decision of the United States Patent Office is erroneous. Certainly, the decision of the United States Patent Office is not conclusive and res adjudicata, as the plaintiff points out in citing the leading case of John Morrell & Co. v. Doyle, 7 Cir., 97 F.2d 232, and the Trial Court must ultimately decide whether there is a similarity calculated to produce confusion or mislead purchasers, irrespective of the decision made by the United States Patent Office. Actually, there is no appreciable difference in the products of the two companies other than that they are packaged individually, with different colored labels and wrappers, with Aloe emphasizing the use of the gel of the aloe vera plant in its products. On the other hand, identical use is made of the two products, to wit, body lotion, skin, hands, face and legs lotion, shampoo and cleansing cream. Aloe also sells its product as an ointment, advertising the healing properties of its ointment because of the ingredient of aloe vera gel. Further, the Court is of the opinion that the trademarks of “All-ercreme” and “Allerereme Saf-Tan”, and “Alo-Creme” and “Alo-Creme After Tan” look alike and sound alike, and because of such similarity, the Court finds that there is a likelihood of confusion. Because there is some difference in the color, size, label and packaging of the products of the two companies, a comparison or analysis would prevent confusion. However, the courts have held that a side by side-comparison is not the test. We concur in the holding of these decisions. “The test of colorable imitation is not whether a difference may be recognized between the name of two-competing articles when placed side by side but whether the difference would be recognized by the prospective customer with no opportunity for comparison.” General Adjustment Bureau, Inc. v. Fuess, D.C., 192 F.Supp. 542. “Infringement is not to be determined on the basis-of a side-by-side visual comparison; ‘we-must determine the purchasing public’s-state of mind when confronted by somewhat similar tradenames singly presented.’ ”" }, { "docid": "16825625", "title": "", "text": "opposer was not entitled to the sole use of the term “dent” in its mark. With respect to this contention we said: “We have frequently said that an applicant for the registration of a trade-mark does not strengthen his own case by pointing out a confusing similarity between trade-marks registered in the Patent Office which are not involved in applicant’s proceeding. It has always been the view of this court that an applicant’s right to the registration of a mark, which implies the exclusive right to use the same, is not enlarged or changed by a consideration of confusingly similar trade-marks which have been registered in the Patent Office. Appellee’s argument, in effect, amounts to a contention that since there is already confusion by reason of Patent Office registrations and extensive use of the term ‘dent’ in many marks, it should have the right to further add to the existing confusion. We do not think the registration statute was intended to promote such a condition as appellee, in effect, argues for.” For the reasons stated we cannot consider registration to third parties in which the term “San” has been used, and hold that the terms “San” in appellee’s mark and “Sani” in appellant’s mark must, in themselves, be given trade-mark significance. The question remains whether the mark of appellee “Tpilet-San” and appellant’s mark “Sani-Flush,” when applied to goods used for identical purposes, are confusingly similar. It is well established that in deciding this question each mark must be considered in its entirety, but it does not follow that every part of a mark must be given the same weight. In the case of American Brewing Company, Inc., v. Delatour Beverage Corporation, 100 F.2d 253, 256, 26 C.C.P.A., Patents, 778, which involved disclaimed descriptive words in a trade-mark, we said: “* * * confusing similarity between two trademarks may not be avoided by the later user merely by adding descriptive disclaimed words to a technical mark clearly similar to the mark of the earlier user. Were it otherwise, one desiring to profit from another’s trade-mark could appropriate it and, by superimposing" }, { "docid": "23468557", "title": "", "text": "trade-mark for dog foods adopted in January, 1934, consists of the words Red Heart alone superimposed upon the representation of a Red Heart. Defendants adopted the trade-mark Strongheart August 4, 1932. At that time they had established brands such as Doyle’s Supreme, Rowdy, and Cal Chow. This trade-mark was used only in connection with the picture of Strongheart, the motion picture dog featured in several motion pictures from 1921 to 1926. The mark was in the form of a circle, with the picture of the dog in the center and the word Strongheart appearing in a semicircular form above the picture of the dog. The latter mark was colored in gray in contrast to plaintiff’s color of red. Defendants under date of October 11, 1932, filed an application in the United States Patent Office for registration of the trade-mark Strongheart for dog and cat food, which mark was opposed by the plaintiff on December 14, 1932. The Examiner of Interferences held the word Heart was a dominant feature of both marks and that there was likelihood of confusion. Upon appeal this holding was affirmed hy the Commissioner of Patents, and upon further appeal the Court of Customs and Patent Appeals, under date of March 29, 1937, affirmed the,decision of the Commissioner of Patents. Doyle v. John Morrell & Company, 88 F.2d 721. Plaintiffs bill pleads the decisions of the Patent Office tribunals, including that of the Court of Customs and Patent Appeals, and urges the position that the decision of that court is final and res adjudicata in the instant suit, and that as a result thereof, defendants are estopped to urge and present evidence in an attempt to show there is no likelihood of confusion in trade between the respective parties. The District Court sustained plaintiff’s contention (John Morrell & Co. v. Doyle et al., 20 F.Supp. 110) and found as a conclusion of law: “Where the Patent Office is authorized by statute to decide certain issues and the parties submit the jurisdiction and the issues are decided, the findings become res adjudicata as to the issue of fact" } ]

[ { "docid": "13469516", "title": "", "text": "to the elements of the charge and did not move for a directed verdict; he merely requested the jury to impose the minimum penalty (T. 143). The prosecutor, in his closing argument, referred the jury to evidence in the original proceedings that Alcorn’s birthdate is in September of 1951 (see T. 75), and stressed that Alcorn’s first conviction, for storehouse breaking, occurred in March of 1970 (T. 144-45). The prosecutor stated that the petitioner would have been eighteen at the time of the conviction. There was no evidence regarding when the crime was committed. Alcorn received a ten-year sentence for the underlying offense and one year for third degree assault. The sentence was enhanced to 50 years because of the persistent felon conviction. In April of 1980, the petitioner filed a habeas corpus petition in federal court alleging two grounds which he had also asserted on direct appeal: that there was no proof of forcible compulsion and no proof of petitioner’s age at the time the prior felonies were committed. The Kentucky Supreme Court had refused to consider these two claims because Alcorn had not preserved the issues for appellate review by moving for a directed verdict or objecting to the jury instructions. Alcorn v. Commonwealth, 557 S.W.2d 624, 627 (Ky.1977). The Kentucky Supreme Court, on motion for a rehearing, also found that Alcorn’s claim that his counsel was ineffective in failing to preserve his claims was barred because that claim had not been raised first in the trial court. Every claim that Alcorn had regarding insufficient evidence was held precluded because his attorney had not properly raised objections or moved for a directed verdict. The district court also refused to address Alcorn’s claims because they were barred from state court consideration. Moreover, the court refused to allow the petitioner a hearing to determine whether cause for the procedural default and actual prejudice resulting from preclusion existed, which would have justified the court in hearing the claims. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In the briefs and arguments before this Court, respondent" } ]

[ { "docid": "20735077", "title": "", "text": "commenced in February 1999. None of the defendants testified, and each was convicted of all counts. The jury recommended sentences of 22 years for complicity to murder and 5 years for each count of complicity to wanton endangerment. The trial judge accepted the recommendations and sentenced each to consecutive sentences totaling 52 years’ imprisonment. McElrath’s convictions were affirmed on direct appeal by the Kentucky Supreme Court (Case No.1999-SC-0463-MR (Ky. Apr. 26, 2001)), as were Boykin’s (Case NO.1999-SC-0462 (Ky. Apr. 26, 2001)). McElrath then moved for post-conviction relief pursuant to Kentucky Rule of Criminal Procedure 11.42. The trial court denied petitioner’s motion in July 2002, the Kentucky Court of Appeals affirmed in August 2004, and the Kentucky Supreme Court denied discretionary review in March 2005. McElrath’s habeas petition was filed on March 16, 2005. Respondent answered and moved for dismissal or summary judgment. The magistrate judge recommended dismissal of the petition in its entirety, which the district court adopted as modified with respect to some claims but remanded two claims for an evidentiary hearing. One of those two claims— whether petitioner’s counsel was ineffective when advising him with respect to the Commonwealth’s alleged five-year plea offer — is before us on appeal. In that regard, the magistrate judge found after an evidentiary hearing that, despite the prosecutor’s repudiation of the offer, the weight of the evidence indicated that a five-year plea offer had been made and rejected. Nonetheless, the magistrate judge concluded that petitioner had not been denied effective assistance of counsel in connection with the plea offer and recommended that the remaining claims be dismissed. In a summary order, the district court accepted the recommendations, dismissed the habeas petition, and denied petitioner a certificate of appealability. Revisiting the last of these when presented with a separate motion for certificate of appealability, the district court was persuaded to grant a certificate of appealability with respect to the Sixth Amendment claim that counsel labored under an impermissible conflict of interest that manifested itself in counsel’s decision to pursue a joint defense that was not in the petitioner’s best interests and in counsel’s" }, { "docid": "18560638", "title": "", "text": "CORNELIA G. KENNEDY, Circuit Judge. John Bennett, petitioner-appellant, appeals from the District Court’s denial of his petition for writ of habeas corpus. Appellant claims that in his murder trial, the state court erred in: (1) refusing to instruct the jury on two lesser included offenses, and (2) refusing to grant a continuance so that appellant could secure the attendance of a witness who would have testified favorably to him. Appellant claims that the first error violated his fourteenth amendment right to due process and that the second error violated his sixth amendment right to compulsory attendance of witnesses and his fourteenth amendment right to due process. Because we agree with appellant’s second claim, we reverse the District Court and remand with instructions to grant the petition. Appellant was indicted by a Campbell County, Kentucky, grand jury for the murder of Vicky Westerfield, in violation of K.R.S. 507.020. After his trial in August 1982, the jury convicted him of first degree manslaughter and imposed the maximum sentence — 20 years. The Supreme Court of Kentucky considered the merits of the allegations of error that are now before this Court and affirmed the conviction. Bennett v. Commonwealth, No. 83-SC-28-MR (Ky.1983). Appellant filed a petition for habeas relief in the United States District Court for the Eastern District of Kentucky. The court ultimately adopted the magistrate’s recommendation that the petition be dismissed. The Supreme Court of Kentucky found the following facts, which appellant does not dispute. Appellant and his girl friend, Susie, drove into the parking lot of the Kit Kat Club, a night club in Newport, Kentucky, at about 2:30 a.m. on March 17, 1982. They waited for an employee, a woman named Tammy, to get off work. When Tammy exited she was with Wester-field (the deceased). Westerfield approached appellant and Susie and informed them that she wanted Tammy to accompany her rather than appellant and Susie. Westerfield and Susie began arguing. Fearing for Susie’s safety, appellant, who was wearing a full leg cast on his left leg, moved between the two women. When Westerfield edged closer to appellant “in a dare-type" }, { "docid": "12284614", "title": "", "text": "affirmed that judgment and the United States Supreme Court denied Brown’s petition for writ of certiorari. Brown v. Smith, 633 F.2d 213 (6th Cir.1980), cert. denied, 451 U.S. 1002, 101 S.Ct. 2341, 68 L.Ed.2d 858 (1981). The Kentucky Supreme Court ultimately affirmed Brown’s conviction on August 31, 1982, but remanded the case to the state trial court for resentencing following a presentence investigation. Resentencing never took place, however, because Brown, who was still free on appeal bond, became a fugitive from justice in Australia for more than ten years. In January 1993, the Commonwealth of Kentucky filed a motion for a bench warrant, which was executed by Brown’s arrest in May 1993 when he was extradited. On June 23, 1993, petitioner filed a motion pursuant to Kentucky Civil Rule 60.02(f) to vacate the seventeen-year old judgment against him based upon the allegedly improper admission of expert testimony at trial. In July 1993, a state trial court denied the motion. The Kentucky Court of Appeals affirmed the trial court’s denial of Brown’s Rule 60.02(f) motion in December 1994. The Supreme Court of Kentucky granted discretionary review and also affirmed the trial court’s decision. On July 20, 1994, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Commonwealth moved to dismiss the petition for failure to exhaust all available state court proceedings on the issue of the admission of certain controversial testimony at trial. The Commonwealth noted that the appeal from the denial of petitioner’s Rule 60.02(f) motion regarding this testimony was pending in the Kentucky Court of Appeals and requested that the petition be dismissed without prejudice. On September 22, 1994, a federal magistrate judge advised the district court in a Report and Recommendation that the Commonwealth’s request should be granted. The district court entered a judgment adopting the magistrate judge’s report on October 18, 1994, and this Court affirmed the district court’s denial of a certificate of probable cause to appeal on January 23, 1995. On November 21, 1996, all available state court proceedings were exhausted pertaining to the issue of the controversial" }, { "docid": "13469513", "title": "", "text": "WISEMAN, District Judge. This is a habeas corpus case brought under 28 U.S.C. § 2254. The petitioner was convicted of first degree sodomy and of being a persistent felon under Kentucky’s persistent felon statute, Ky.Rev.Stat. § 532.080(3)(b), which requires that one be at least eighteen years of age at the time he commits two prior offenses. The petitioner raises before this Court several grounds for relief: 1) Denial of due process by the district court’s dismissal of his habeas petition due to a procedural default at trial without affording the petitioner a hearing on cause and prejudice; 2) Failure by the State to prove by sufficient evidence an essential element of the offense, which should be heard despite procedural default or, alternatively, should be heard because the trial attorney’s alleged incompetence provided cause for the default; 3) Lack of proof of the elements of forcible compulsion and earnest resistance as required for the offense; and 4) Lack of proof of age at the time he committed the prior offenses as required for the persistent felon conviction. According to the proof at trial, Alcorn fought with another inmate of the Fayette County Jail in May of 1976, for reasons which are in dispute. Alcorn and another witness testified that the fight began because the other inmate, Ousley, had laughed at Alcorn’s burn scars (T. 100-01, 95). Ousley testified that Alcorn attacked him for no reason (T. 21). The fight took place two hours prior to the alleged rape. Ousley was beaten and, according to one account, said he would do anything Alcorn wanted (T. 49). Alcorn testified that he had made amends with Ousley and requested his help in looking after another inmate in Alcorn’s cell who was undergoing withdrawal from narcotics (T. 105). Once in Alcorn’s cell, they talked with one. another for two hours until all cells were locked (T. 23). There was conflicting testimony about whether Ousley called for help during this time (T. 51, 96). Ousley admitted that he did not call any guards (T. 23). When an officer came by the cell after the incident, and" }, { "docid": "12284613", "title": "", "text": "Court dismissed petitioner’s direct appeal as untimely. On October 31, 1977, petitioner filed a petition for writ of habeas corpus contending that the dismissal of his direct appeal was in error. On February 6, 1978, the district court denied petitioner’s application due to his failure to exhaust his state court remedies, but retained the case on its docket pending exhaustion of those remedies. The Kentucky Supreme Court granted petitioner’s motion for a belated appeal on March 17,1978, but dismissed it on August 22, 1978. On August 24, 1978, petitioner filed a motion to reconsider his petition for writ of habeas corpus in the district court. The state court resenteneed petitioner to twenty years imprisonment on September 5, 1978. On June 27, 1979, the district court granted petitioner a conditional writ of habeas corpus, but stayed the writ for a period of sixty days so that petitioner’s appeal to the Kentucky Supreme Court could be reinstated. The district court order stated that if petitioner’s appeal were not reinstated, petitioner’s conviction would be set aside. This Court affirmed that judgment and the United States Supreme Court denied Brown’s petition for writ of certiorari. Brown v. Smith, 633 F.2d 213 (6th Cir.1980), cert. denied, 451 U.S. 1002, 101 S.Ct. 2341, 68 L.Ed.2d 858 (1981). The Kentucky Supreme Court ultimately affirmed Brown’s conviction on August 31, 1982, but remanded the case to the state trial court for resentencing following a presentence investigation. Resentencing never took place, however, because Brown, who was still free on appeal bond, became a fugitive from justice in Australia for more than ten years. In January 1993, the Commonwealth of Kentucky filed a motion for a bench warrant, which was executed by Brown’s arrest in May 1993 when he was extradited. On June 23, 1993, petitioner filed a motion pursuant to Kentucky Civil Rule 60.02(f) to vacate the seventeen-year old judgment against him based upon the allegedly improper admission of expert testimony at trial. In July 1993, a state trial court denied the motion. The Kentucky Court of Appeals affirmed the trial court’s denial of Brown’s Rule 60.02(f) motion in" }, { "docid": "1152280", "title": "", "text": "If the failure to object to the prior convictions in this case had not resulted in an enhancement of Alcorn’s sentence, it would not have satisfied Sykes’ prejudice requirement and would not constitute ineffective assistance. See McDonald v. Es telle, 536 F.2d 667, 671 (5th Cir.1976) (per curiam), vacated and remanded in light of Sykes, 433 U.S. 904, 97 S.Ct. 2967, 53 L.Ed.2d 1088, remanded for consideration of cause, 564 F.2d 199 (5th Cir.1977). Similarly, other nonegregious errors such as failure to perceive or anticipate a change in the law, as was the case in Isaac, generally cannot be considered ineffective assistance of counsel. Ill OTHER FACTORS There are factors in this case other than the effectiveness of counsel, and the district court should not limit its consideration of cause and prejudice to the issue of whether counsel was sufficiently effective. The right at issue in this ease is a fundamental one — the right not to be convicted unless guilt is proved by sufficient evidence. The district court must therefore determine, after a full and fair hearing, whether such a basic right is entitled to a more moderate calculation of cause and prejudice and whether the state presents sufficient interests in finality to justify its strong limitations on a review of that right. The petitioner asserts that Sykes should not apply to claims of insufficient evidence to support a conviction. It is a denial of due process to convict and punish a person without evidence of that person’s guilt. Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 629, 4 L.Ed.2d 654 (1960). A conviction based on a record lacking evidence as to a crucial element of the offense charged violates due process. Vachon v. New Hampshire, 414 U.S. 478, 480, 94 S.Ct. 664, 665, 38 L.Ed.2d 666 (1974). Under Kentucky law, proof that the defendant in a persistent felon trial was eighteen years of age at the time he committed the prior felonies is an essential element of the offense which the state must prove. The proof requirement is not satisfied merely by showing that" }, { "docid": "23550260", "title": "", "text": "26, a four-minute phone call to Union City, Tennessee December 31, and four days prior to trial, on January 2, 1987, nine phone calls to Oklahoma lasting a total of sixteen minutes, in an effort to locate Elam. The trial commenced January 6, 1987. Immediately prior to trial, Carter’s counsel stated on the record that although his motion to quash Elam’s deposition had been argued, it had not been transcribed, and he reiterated his objections to its admission. He argued that the absence of Carter at Elam’s deposition denied him his right to confront his accuser. He also emphasized to the court that the Commonwealth had used the Uniform Non-Resident Witness Act to procure Elam’s attendance at his deposition, but had not made a similar effort to obtain his presence at trial. The motion was overruled and the deposition was read as the Commonwealth’s first witness. One of the police officers also testified concerning what Elam had told him prior to taking them to Kentucky to show them the trailer. The trial court overruled petitioner’s objection to introduction of this hearsay testimony. The jury found Carter guilty of possession of marijuana and trafficking in LSD, and of being a first degree persistent felony offender. Carter appealed. The Kentucky Supreme Court upheld his substantive convictions, but reversed his first degree persistent felony offender conviction due to insufficient evidence. Carter v. Commonwealth, 782 S.W.2d 597, 602 (Ky.1989). After his petition for writ of certiorari to the United States Supreme Court was denied, 497 U.S. 1029, 110 S.Ct. 3282, 111 L.Ed.2d 791 (1990), Carter filed a petition for writ of habeas corpus in the district court, which was denied November 1, 1991. Carter .filed a Motion for Certificate of Probable Cause in this Court March 10, 1992, which we granted April 15, 1992. II. Petitioner’s claims on appeal all revolve around Elam’s testimony. Petitioner asserts that the prosecutor’s decision to continue Elam’s deposition after the departure of petitioner’s attorney denied him his Sixth Amendment right to counsel, and his right under the Fifth, Sixth and Fourteenth Amendments to be present at all critical" }, { "docid": "21544683", "title": "", "text": "that conflicted with federal standards for determining whether federal rights are validly waived, the state trial judge overruled the motion. The jury then found Dunn guilty of the PFO charge, as well as of the substantive offense. In his petition for a writ of habeas corpus, Dunn maintained that the Kentucky courts improperly adjudicated the validity of his prior convictions. The district court agreed. I. The state first contends that the district court erred when it determined that the prior convictions, upon which Dunn’s PFO conviction was based, were invalid since the state failed to demonstrate that Dunn intelligently and voluntarily waived his federal constitutional rights when he entered the guilty pleas resulting in those convictions. Specifically, the state argues that the Kentucky Supreme Court has correctly assigned the burdens of evidence production and persuasion in proceedings to determine if federal constitutional rights have been waived in guilty plea proceedings. Under Kentucky’s PFO statute, Ky.Rev. StatAnn. § 532.080 (Baldwin 1984), the state’s burden in proving the fact of a prior felony conviction is to persuade the jury beyond a reasonable doubt. Hon v. Kentucky, 670 S.W.2d 851, 853 (Ky.1984). Resolution of that question of fact is not involved in this appeal; instead, we are reviewing the determination of a question of law initially made by the state trial court after a suppression hearing, affirmed by the Kentucky Supreme Court, and ultimately addressed by the district court upon Dunn’s petition for a writ of habeas corpus. That question of law concerns the legal validity of Dunn’s prior convictions. Generally, when courts are called upon to decide this question of law, a prior conviction is being examined in the context of a pretrial motion filed in a PFO prosecu tion, or in a post-conviction inquiry into whether the conviction is invalid. The question is whether the conviction is based upon a guilty plea accepted in the absence of a valid waiver by the accused of the federal constitutional rights he surrendered by pleading guilty. In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme" }, { "docid": "1152270", "title": "", "text": "WISEMAN, District Judge. The facts and prior procedural history of this case are set forth in the Court’s opinion of December 20, 1983. 724 F.2d 37 (6th Cir.1983). Petitioner filed a petition for the Writ of Certiorari, and a Motion to Vacate the prior judgment of this Court, the Supreme Court vacated the judgment and remanded the cause to this Court, - U.S. -, 105 S.Ct. 2315, 85 L.Ed.2d 835, for further proceedings in light of the assertions set forth in the petitioner’s Motion to Vacate, and the response filed thereto. This Court had vacated the judgment of the district court sua sponte because it appeared to us on the record before us that petitioner had failed to exhaust available remedies in the Kentucky courts. We found that petitioner had not presented the Kentucky Supreme Court with the claim that his procedural default should be excused to prevent injustice or because his counsel was inadequate. We held that Ky. R.Cr. 11.42 afforded petitioner an adequate post-conviction opportunity to raise these claims and that it had not been utilized. After certiorari was granted, counsel for petitioner first learned that petitioner had filed two pro se state post-conviction actions under Ky.R.Cr. 11.42 prior to the filing of his habeas corpus action, and these facts were acknowledged by the respondent. In view of these events, unknown to counsel and unasserted before us in our previous consideration, the case is remanded to us to reconsider the petitioner’s appeal from the dismissal by the district court on its merits. I NECESSITY OF A “CAUSE AND PREJUDICE” HEARING. The standard of “cause” for a procedural default was left open for case-by-case determination in the seminal case of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The Court there said: “Matters such as the competence of counsel, the procedural context in which the asserted waiver occurred, the character of the constitutional right at stake, and the overall fairness of the entire proceeding, may be more significant than the language of the test the Court purports to apply.” Id. at 95-96, 97 S.Ct." }, { "docid": "22639277", "title": "", "text": "Justice O’Connor delivered the opinion of the Court. Kentucky’s “Persistent felony offender sentencing” statute, Ky. Rev. Stat. Ann. §532.080 (Michie 1990), provides mandatory minimum sentences for repeat felons. Under Kentucky law, a defendant charged as a persistent felony offender may challenge prior convictions that form the basis of the charge on the ground that they are invalid. Respondent, who was indicted under the statute, claimed that two convictions offered against him were invalid under Boykin v. Alabama, 395 U. S. 238 (1969). The trial court, after a hearing, rejected this claim, and respondent was convicted ánd sentenced as a persistent felony offender. After exhausting his state remedies, respondent petitioned for a writ of habeas corpus in the United States District Court for the Western District of Kentucky. The District Court denied relief, but the Court of Appeals for the Sixth Circuit ordered that the writ conditionally issue, concluding that the trial court proceedings were constitutionally infirm. As it comes to this Court, the question presented is whether Kentucky’s procedure for determining a prior conviction’s validity under Boykin violates the Due Process Clause of the Fourteenth Amendment because It does not require the government to carry the entire burden of proof by clear and convincing evidence when a transcript of the prior plea proceeding is unavailable. In May 1986, the Commonwealth charged respondent Ricky Harold Raley with robbery and with being a persistent felony offender in the first degree. The latter charge was based on two burglaries to which respondent had pleaded guilty in November 1979 and October 1981. Respondent never appealed his convictions for those crimes. He nevertheless moved to suppress them in the persistent felony offender proceeding, arguing that they were invalid under Boykin because the records did not contain transcripts of the plea proceedings and hence did not affirmatively show that respondent’s guilty pleas were knowing and voluntary. The trial court held a hearing according to procedures set forth in Commonwealth v. Gadd, 665 S. W. 2d 915 (Ky. 1984), and Dunn v. Commonwealth, 703 S. W. 2d 874 (Ky. 1985), cert. denied, 479 U. S. 832 (1986)." }, { "docid": "13266877", "title": "", "text": "Per Curiam. The petition for certiorari is granted. The Court of Appeals for the Sixth Circuit affirmed the conviction of petitioners, husband and wife, under an information charging them with violating the federal obscenity statute, 18 U. S. C. § 1461 (1964 ed.), by having mailed undeveloped films of each other posing in the nude to an out-of-state firm for developing, and having recéived through the mails the developed negatives and a print of each. In response to the certiorari petition, the Solicitor General has filed a motion requesting that the judgment of the Court of Appeals for the Sixth Circuit be vacated and the cause remanded to the District Court with directions to dismiss the information. The ground of the motion is that “the initiation of the instant prosecution was not in accord with policies which had previously been formulated within the Department [of Justice] for the guidance of United States Attorneys.” The policies referred to are set forth in a memorandum to United States Attorneys, dated August 31, 1964. The memorandum states, in pertinent part, that prosecution for mailing private correspondence which is allegedly obscene “should be the exception confined to those cases involving repeated offenders or other circumstances which may fairly be characterized as aggravated.” The Solicitor General states that there are no such exceptional circumstances warranting a prosecution of petitioners: “They were not repeated offenders. They had no record of involvement with obscene materials or sex-related offenses and no apparent opportunity for close association with young people. No other aggravating circumstance appears to be present.” In consideration of the premises and upon an independent examination of the record filed in this Court, the motion is granted. The judgment of the Court of Appeals is accordingly vacated, the cause is remanded to the District Court, and that court is directed to dismiss the information. See Petite v. United States, 361 U. S. 529. It is so ordered. Mr. Justice Stewart, with whom Mr. Justice Black and Mr. Justice Douglas concur, would reverse this conviction, not because it violates the policy of the Justice Department, but because it" }, { "docid": "12994658", "title": "", "text": "CONTIE, Circuit Judge. Respondent Rose appeals the district court’s order discharging petitioner Fisher from custody and barring further prosecution by the State of Tennessee. We reverse and remand the case to the district court for further proceedings consistent with this opinion. I. On-November 13, 1978, petitioner Howard P. Fisher was convicted by a jury in the Criminal Court of Davidson County on counts of kidnapping for the purpose of committing the offense of robbery and robbery by the use of a deadly weapon. Fisher was sentenced to consecutive life sentences and was incarcerated in the Tennessee State Prison. On April 9, 1980, the Tennessee Court of Criminal Appeals affirmed the convictions, and on July 28, 1980, the Tennessee Supreme Court denied Fisher permission to appeal. On September 29, 1980, Fisher filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Tennessee, contending that he had been denied his sixth amendment right of confrontation by .the trial court’s refusal to allow Fisher to cross-examine his codefendant. On October 4, 1982, the district court granted Fisher’s petition, ordering that “[ijssuance of the writ will be stayed for ninety (90) days pending appeal by respondent or, within which time, the State may on its own motion vacate petitioner’s conviction and grant him a new trial.” On December 23, 1982, the district court, on respondent’s motion, further stayed the granting of the writ “pending the outcome of the respondent’s appeal.” On May 5, 1983 this court affirmed the district court’s judgment and the mandate was issued on May 27, 1983. On July 17, 1983, the state court appointed counsel and set trial for September 12,1983. Bond was set at $30,000. On September 12, due to a conflict of interest by counsel, new counsel was appointed and trial was set for March 19, 1984. Trial was subsequently continued to June 4, 1984 when defense counsel was not informed of the March 19 trial date. On May 22, 1984, Fisher, proceeding pro se, petitioned the district court for an order sustaining the writ, citing the state’s" }, { "docid": "13469517", "title": "", "text": "refused to consider these two claims because Alcorn had not preserved the issues for appellate review by moving for a directed verdict or objecting to the jury instructions. Alcorn v. Commonwealth, 557 S.W.2d 624, 627 (Ky.1977). The Kentucky Supreme Court, on motion for a rehearing, also found that Alcorn’s claim that his counsel was ineffective in failing to preserve his claims was barred because that claim had not been raised first in the trial court. Every claim that Alcorn had regarding insufficient evidence was held precluded because his attorney had not properly raised objections or moved for a directed verdict. The district court also refused to address Alcorn’s claims because they were barred from state court consideration. Moreover, the court refused to allow the petitioner a hearing to determine whether cause for the procedural default and actual prejudice resulting from preclusion existed, which would have justified the court in hearing the claims. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In the briefs and arguments before this Court, respondent did not raise the issue of exhaustion of available state remedies. 28 U.S.C. § 2254(b) and (c); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). However, the rule in this Circuit is that the issue of exhaustion of state remedies may not be waived or conceded. Bowen v. Tennessee, 698 F.2d 241, 243 (6th Cir.1983) (en banc). Thus, the case must be dismissed, sua sponte, if it appears that Kentucky provides a remedy by which petitioner’s complaints may be addressed. Kentucky Rules of Criminal Procedure, Rule 11.42(1) provides: (1) A prisoner in custody under sentence or a defendant on probation, parole or conditional discharge who claims a right to be released on the ground that the sentence is subject to collateral attack may at any time proceed directly by motion in the court that imposed the sentence to vacate, set aside or correct it. Although the petitioner did not raise incompetency of counsel in this Court as a substantive ground for relief, he asserted it provided cause and prejudice to" }, { "docid": "23550261", "title": "", "text": "objection to introduction of this hearsay testimony. The jury found Carter guilty of possession of marijuana and trafficking in LSD, and of being a first degree persistent felony offender. Carter appealed. The Kentucky Supreme Court upheld his substantive convictions, but reversed his first degree persistent felony offender conviction due to insufficient evidence. Carter v. Commonwealth, 782 S.W.2d 597, 602 (Ky.1989). After his petition for writ of certiorari to the United States Supreme Court was denied, 497 U.S. 1029, 110 S.Ct. 3282, 111 L.Ed.2d 791 (1990), Carter filed a petition for writ of habeas corpus in the district court, which was denied November 1, 1991. Carter .filed a Motion for Certificate of Probable Cause in this Court March 10, 1992, which we granted April 15, 1992. II. Petitioner’s claims on appeal all revolve around Elam’s testimony. Petitioner asserts that the prosecutor’s decision to continue Elam’s deposition after the departure of petitioner’s attorney denied him his Sixth Amendment right to counsel, and his right under the Fifth, Sixth and Fourteenth Amendments to be present at all critical stages of the proceeding against him. Petitioner further contends that the failure of the trial court to suppress the deposition at trial violated his Sixth Amendment right to confront his accuser, due both to the Commonwealth’s lack of a good-faith effort to obtain Elam’s presence at trial and due to the inherent unreliability of a deposition not subjected to cross-examination. Finally, he asserts the admission of Elam’s hearsay statements through the officer’s testimony at trial was reversible, not harmless, error. We review de novo a district court’s refusal to grant a habeas petition, and the district court’s factual determinations are reviewed under the clearly erroneous standard. McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1744, 104 L.Ed.2d 181 (1989). We defer to state court findings if supported by the evidence. Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir.1989), cert. denied, 495 U.S. 950, 110 S.Ct. 2212, 109 L.Ed.2d 538 (1990). The Sixth Amendment on its face guarantees a criminal defendant the right “to be confronted with" }, { "docid": "429214", "title": "", "text": "PER CURIAM. In this habeas corpus case collaterally attacking a 1971 Kentucky murder conviction, the District Court issued the writ on grounds that the negligence of petitioner’s retained counsel in failing to perfect a direct appeal from the conviction constituted ineffective assistance of counsel in violation of the Sixth Amendment as incorporated in the Due Process Clause of the Fourteenth Amendment. We reverse because the Kentucky Supreme Court, in reviewing petitioner’s case under its postconviction relief statute, has given adequate, independent state grounds for rejecting petitioner’s claim, and because the negligence of counsel in failing to perfect a direct appeal therefore has not caused petitioner any injury. I. Mahan Hollin was convicted in 1971 of murder and was sentenced to life imprisonment. Although a notice of appeal was filed in timely fashion, the appeal was dismissed or never docketed because Hollin’s lawyer filed the record on appeal nine days after the relevant due date. In the intended appeal, Hollin sought to present one question for review. He contended that the state trial court erred when, without objection, it allowed the prosecutor to cross-examine him as to a prior felony conviction without first determining in camera whether such evidence was relevant to the defendant’s credibility as required by state law. For this contention, he relied on Cotton v. Commonwealth, 454 S.W.2d 698 (Ky. 1970), which appears to hold that an in camera hearing is required prior to cross-examination respecting prior felony convictions. Four years later, when Hollin apparently discovered that his appeal had not been docketed in the Kentucky Court of Appeals, he retained different counsel to pursue his case. His new counsel filed a motion for post-conviction relief under Rule 11.42 of the Kentucky Rules of Criminal Procedure in order to vacate judgment or, in the alternative, for a belated appeal on the merits. The state trial court declined to rule on his request for a belated appeal on grounds that as a trial court it lacked appellate jurisdiction. Hollin thereafter appealed to the Kentucky Supreme Court, claiming that the trial court erred in refusing to rule on his request" }, { "docid": "8730430", "title": "", "text": "FEINBERG, Circuit Judge: Mariano Salomon appeals from an order of the United States District Court for the Southern District of New York, Milton Pollack, J., denying his petition for a writ of habeas corpus. Salomon, along with co-defendant Victor Colon, was convicted in the state courts in June 1974 of possession and sale of approximately one pound of cocaine, for which he received concurrent sentences of 20 years to life. Salomon claims that his Sixth Amendment right to counsel was infringed at his trial because his lawyer also represented Colon. Because the district judge applied an incorrect burden of proof in reaching his decision, we conclude that we must remand the case for further proceedings. I This appeal has had an extended procedural history. In April 1976, Salomon filed in the federal district court his pro se petition for a writ of habeas corpus, raising the Sixth Amendment claim now before us, along with other issues not now relevant. Judge Pollack denied the writ in July 1976 without an evidentiary hearing, finding that Salomon had failed to show any prejudice arising from the joint representation at the state trial. Salomon thereafter petitioned this court for a certificate of probable cause under 28 U.S.C. § 2253, for leave to proceed in forma pauperis on that appeal, and for assignment of counsel. In March 1977, a panel of this court vacated the judgment of the district court and “remanded for consideration of the question of waiver.” Upon remand, the judge appointed counsel for appellant and held an evidentiary hearing, at which three witnesses testified: Salomon, his trial counsel, and the latter’s brother, who had also represented petitioner. In June 1977, Judge Pollack once more denied the writ, finding that [petitioner has failed to demonstrate that the joint representation or his lawyer’s trial strategy was conducive to or created or resulted in any conflict of interest or prejudice. The judge concluded that Consequently, the question of waiver . is not and need not be reached in the circumstances of this case. Once again appellant moved for a certificate of probable cause, leave to" }, { "docid": "1232887", "title": "", "text": "to the nature of the testimony and the age of the witness that face-to-face arrangement would inhibit the witness to a degree that the jury’s search for the truth would be clouded. The Court is strongly of the opinion that the electronic equipment ... which operates in complete conformity with Kentucky Revised Statute 421.350 is sufficient to facilitate the presentation of evidence while at the same time preserving the defendant’s rights to confront the Commonwealth’s witnesses pursuant to the Sixth Amendment. So the compelling need is not based on convenience or comfort level of the witness so much as it is the need to be able to disclose the testimony so that the jury itself can determine whether they want to accept or reject same or what weight should be given. The case proceeded to trial on November 6, 1996. On November 8, 1996, the jury returned a verdict finding Danner guilty of both counts of first degree sodomy and one count of first degree rape. Danner was sentenced to twenty-four years of imprisonment on each count to run concurrently. Danner appealed his conviction, and the Kentucky Supreme Court affirmed his conviction on February 19, 1998. Danner v. Commonwealth, 963 S.W.2d 632 (Ky.1998). The Supreme Court denied certiorari on November 16, 1998. Danner v. Kentucky, 525 U.S. 1010, 119 S.Ct. 529, 142 L.Ed.2d 439 (1998). Danner unsuccessfully pursued various forms of post-conviction relief in Kentucky state court, receiving his last denial of relief from the Kentucky Supreme Court on December 11, 2002. On April 28, 2003, Danner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in United States District Court for the Eastern District of Kentucky. In the petition, he raised six claims: (1) the trial court erred in permitting the victim to testify via closed circuit television; (2) his Confrontation Clause rights under the Sixth Amendment were violated by the use of the closed circuit television procedure; (3) he received ineffective assistance of trial counsel due to counsel’s failure to investigate his case or prepare a defense; (4) the trial court denied" }, { "docid": "15906885", "title": "", "text": "decline to review convictions when there is no possibility of adverse “collateral consequences” if the convictions stand. United States v. Stewart, No. 84-1084, unpub. op., 782 F.2d 1044 (6th Cir.1985), citing Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); United States v. Maze, 468 F.2d 529 (6th Cir.1972). Thus, in Ethridge v. United States, 494 F.2d 351 (6th Cir.), cert. denied, 419 U.S. 1025, 95 S.Ct. 504, 42 L.Ed.2d 300 (1974), we declined to hear challenges to two convictions — twenty years for bank robbery and ten years for possession of bank robbery proceeds — when the petitioner could point to no disadvantage resulting from these convictions when petitioner did not contest his fifty-year murder sentence and conviction. In the present case, as in Ethridge, petitioner has not directed us towards any \"collateral consequences” accompanying his conviction on the possession charge. WELLFORD, Circuit Judge, concurring. I am in accord with Part III of Judge Guy’s decision and concur in the reversal of the decision of the district court for the reasons well expressed therein. I am not, however, in agreement with Part II of that decision that Dale necessarily “contravened the Boulder decision.” I write separately, then, to express my belief that the Kentucky Supreme Court’s decision in Boulder v. Commonwealth, 610 S.W.2d 615 (Ky.1980), is factually distinct from this case and should not be controlling on its outcome. The statement of the same court in Dale v. Commonwealth, 715 S.W.2d 227 (Ky.1986), that it was overruling Boulder “to the extent ... [it] is inconsistent” had no ex post facto effect. In Boulder the prosecution established the charge of possession of a handgun by a convicted felon by using the defendant’s 1976 conviction of first degree assault. This same prior felony was then used in the persistent felony offender (PFO) stage of the trial to enhance the sentence from three to five years. Finally, the same prior conviction was used a third time to enhance the sentence of a separate felony from fifteen to thirty-five years. As the court stated, “[t]he prosecutor bombarded [the defendant]" }, { "docid": "22778743", "title": "", "text": "Supp. 984 (1984). Petitioner’s failure at trial “to make even an offer of proof” to satisfy the evidentiary standard of Swain constituted a procedural default for which petitioner had offered no excuse. Id., at 986; see United States ex rel. Allen v. Hardy, 583 F. Supp. 562 (1984). In a subsequent opinion, the District Court also considered and rejected petitioner’s contention that the State’s exercise of its peremptory challenges at his trial violated the Sixth Amendment. United States ex rel. Allen v. Hardy, 586 F. Supp. 103, 104-106 (1984). Moreover, noting that the Court of Appeals for the Seventh Circuit had “twice within the past 60 days reconfirmed the continuing validity of Swain,” the decision on which the orders in this case rested, the District Court declined to issue a certificate of probable cause. Petitioner filed a notice of appeal, which the Court of Appeals for the Seventh Circuit construed as an application for a certificate of probable cause to appeal. Finding that petitioner failed to make a “substantial showing of the denial of a federal right” or that the questions he sought to raise “deserve[d] further proceedings,” the court denied the request for a certificate of probable cause. In his petition for certiorari, petitioner argues that the Court of Appeals’ refusal to issue a certificate of probable cause was erroneous in view of the fact that Batson v. Kentucky, 476 U. S. 79 (1986), was pending before us at the time of the Court of Appeals’ decision. The thrust of petitioner’s argument is that the rule in Batson should be available to him as a ground for relief on remand. We conclude that our deci sion in Batson should not be applied retroactively on collateral review of convictions that became final before our opinion was announced. Accordingly, we grant petitioner’s motion for leave to proceed informa pauperis, grant the petition for a writ of certiorari, and affirm the judgment of the Court of Appeals. In deciding the extent to which a decision announcing a new constitutional rule of criminal procedure should be given retroactive effect, the Court traditionally has" }, { "docid": "21544682", "title": "", "text": "ALAN E. NORRIS, Circuit Judge. This is an appeal by the state from an order of the district court granting a writ of habeas corpus to petitioner, Gene M. Dunn, Jr. Dunn was found guilty by a Kentucky jury of the substantive offense of possession of a controlled substance, and of being a persistent felony offender (PFO), and these convictions were upheld by the Kentucky Supreme Court. The effect of the district court’s order is to relieve Dunn of his conviction as a PFO and its enhanced sentence, but to leave undisturbed his conviction for possession of a controlled substance. Prior to trial, Dunn sought to have the PFO indictment dismissed, contending that the 1970, 1973, and 1976 convictions upon which that charge was based, should be suppressed. He argued that the prior convictions were based upon invalid guilty pleas, since those pleas were accepted without Dunn having intelligently and voluntarily waived federal constitutional rights to which he was entitled. While expressing concern that he was required to follow case law from Kentucky appellate courts that conflicted with federal standards for determining whether federal rights are validly waived, the state trial judge overruled the motion. The jury then found Dunn guilty of the PFO charge, as well as of the substantive offense. In his petition for a writ of habeas corpus, Dunn maintained that the Kentucky courts improperly adjudicated the validity of his prior convictions. The district court agreed. I. The state first contends that the district court erred when it determined that the prior convictions, upon which Dunn’s PFO conviction was based, were invalid since the state failed to demonstrate that Dunn intelligently and voluntarily waived his federal constitutional rights when he entered the guilty pleas resulting in those convictions. Specifically, the state argues that the Kentucky Supreme Court has correctly assigned the burdens of evidence production and persuasion in proceedings to determine if federal constitutional rights have been waived in guilty plea proceedings. Under Kentucky’s PFO statute, Ky.Rev. StatAnn. § 532.080 (Baldwin 1984), the state’s burden in proving the fact of a prior felony conviction is to persuade" } ]

[ { "docid": "12548191", "title": "", "text": "raising qualified immunity); Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3914.10 at 674-75 (1992) (“[T]he purpose of protecting officials against the burdens of trial preparation and trial suggests that at some point appeal should be available from failure to make a pretrial ruling on an immunity de-fense_”)• We agree with the Second Circuit’s reason for following Helton: if we deny appellate review when a district court postpones until trial a ruling on a qualified immunity defense, a defendant would stand to lose whatever entitlement he or she might otherwise have not to stand trial. Musso, 836 F.2d at 741. For the reasons set forth in Helton, we hold that we have jurisdiction of the appeals from the orders postponing a decision on the motions to dismiss. This holding does not affect our decision in Maxey ex rel. Maxey v. Fulton, 890 F.2d 279, 282-83 (10th Cir.1989), that an order is not immediately appealable if it defers a decision on a qualified immunity claim because the claim turns, at least partially, on a fact question; the court is unable to rule on the claim without further factual clarification; and the court permits discovery narrowly tailored to uncover only those facts needed to rule on the claim. See also Lewis v. City of Ft. Collins, 903 F.2d 752, 754 (10th Cir.1990). The Fifth and Second Circuits recognize this distinction. See Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir.1987); Gaines v. Davis, 928 F.2d 705, 707 (5th Cir.1991); Smith v. Reagan, 841 F.2d 28, 31 (2d Cir.1988) (order holding in abeyance motion to dismiss on Eleventh Amendment immunity grounds, otherwise immediately appealable, might not be immediately appealable if based on need for discovery or other pretrial proceedings relating to disposition of motion). Having concluded that defendants have a remedy by appeal, we deny their Petition for Writ of Mandamus. II. Turning to the merits of the appeals, we reiterate that qualified immunity is not only a defense to liability but also entitlement to immunity from suit and other demands of litigation. Siegert v." } ]

[ { "docid": "22170749", "title": "", "text": "urge this court to review disputed factual issues in an interlocutory appeal — including the defense that Agent Wood “didn’t do it.” See Appellant’s Opening Br. at 41 (“The undisputed evidence in the summary-judgment record shows that Agent Wood played no part in establishing the security perimeter.”). The evidence of Agent Wood’s involvement in the relocation of Plaintiffs’ demonstration can be called “undisputed” only because the district court stayed discovery at Defendants’ request; thus, Plaintiffs have not yet had the opportunity to dispute it. Defendants insist that, where qualified immunity is at issue, a district court may not defer ruling on the question of whether an official’s actions violated clearly established law, and that orders deferring such a ruling should therefore be immediately appealable. This court squarely rejected that argument in the context of a deferred ruling on an absolute immunity defense. See Miller v. Gammie, 335 F.3d 889, 894 (9th Cir.2003) (en banc) (holding that “[d]istrict court orders deferring a ruling on immunity for a limited time to ascertain what relevant functions were performed generally are not appealable ... because they are not orders that deny the claimed existence of immunity ... ”). Further, Defendants’ argument is difficult to reconcile with the Supreme Court’s recognition that limited discovery, tailored to the issue of qualified immunity, will sometimes be necessary before a district court can resolve a motion for summary judgment. See Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Crawford-El v. Britton, 523 U.S. 574, 593 n. 14, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (plurality opinion) (stating that qualified immunity exists to protect officials from “ ‘broad-reaching discovery’ ” but not from discovery altogether (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982))). But even assuming that orders deferring a ruling on qualified immunity are immediately appealable in some circumstances, those circumstances are clearly-not present here. In the context of a denial of qualified immunity, the policy justification for permitting immediate appeal rests on the fact that qualified immunity is an immunity" }, { "docid": "1341680", "title": "", "text": "the district court enters final judgment in the case. See Johnson, 515 U.S. at 313, 115 S.Ct. 2151. Wright argues that the Appellants’ qualified immunity claims are not reviewable on interlocutory appeal because the District Court’s December 18, 1998, Memorandum and Order “sets forth the clearly established right which the Appellants violated and therefore denied them the protection of qualified immunity.” Appellee’s Br. at 13 (citing App. at 1779a). But this argument demonstrates a complete failure to understand the collateral-order doctrine, as well as the nature of our review. Had the District Court actually ruled that Wright had alleged a violation of a clearly established right, that would be exactly the type of ruling we would have jurisdiction to review on interlocutory appeal. The fact is, however, the District Court never rendered any such ruling, nor addressed the Appellants’ immunity claims in any manner. Indeed, although the court began its December 18th Memorandum and Order by stating that it was addressing, among other things, Appellants’ “Motion for Summary Judgment Concerning Their Immunity,” the court did not analyze the immunity issue, and instead limited its discussion to the viability of Wright’s substantive claims. In its March 15th Memorandum and Order, the court again addressed the substantive issues only. Because the District Court never explicitly addressed the Appellants’ immunity claims, we must decide whether we have interlocutory jurisdiction to review an implied denial of those claims. We join the other Circuit Courts of Appeals that have addressed this issue and hold that we do. See Lowe v. Town of Fairland, 143 F.3d 1378, 1380 (10th Cir.1998); Zayas-Green v. Casaine, 906 F.2d 18, 23 (1st Cir.1990); Musso v. Hourigan, 836 F.2d 736, 741 (2d Cir.1988); Craft v. Wipf, 810 F.2d 170, 173 (8th Cir.1987); Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir.1986) (per curiam); see also Nelson v. Jashurek, 109 F.3d 142, 146-147 (3d Cir.1997) (suggesting interlocutory jurisdiction might exist where denial of qualified immunity claim can be inferred); Ryan v. Burlington County, 860 F.2d 1199, 1203 (3d Cir.1988) (holding that a district court’s “order is ‘final’ and immediately reviewable under Mitchell" }, { "docid": "21859925", "title": "", "text": "the same order, granted the Defendants’ motion asking the court to make a qualified immunity determination before permitting discovery on the intentional discrimination issue. In March 2004, the district court issued a brief order granting the Defendants’ motion for summary judgment with respect to qualified immunity for the individual Defendants. In its order, the court indicated that it would later issue an opinion explaining the rationale for granting summary judgment. Subsequently, the district court suggested that the Defendants file a motion seeking a disposition on the remaining claims. The Defendants then filed a second motion for summary judgment, which asserted that the Nation had not proved intentional discrimination. The Nation filed a second Rule 56(f) motion requesting that the court stay consideration of the second summary judgment motion pending an opportunity to conduct discovery on the factual issues raised in the Defendants’ motion. The district court denied this motion but lifted the discovery stay and permitted the Nation to raise its discovery concerns at the hearing on the motion for summary judgment. Thereafter, the Nation resumed discovery by reviewing documents at assessors’ offices in Tierra Amarilla and Española. As the Nation attempted to begin taking depositions, the Defendants sought and obtained a protective order preventing the depositions from being taken. Several weeks after entry of that order, the district court issued a memorandum opinion explaining its previous grant of summary judgment on qualified immunity to the Defendants sued in their individual capacities. The district court also granted summary judgment to the Defendants sued in their official capacities and to the County. The Nation appeals both summary judgment orders, as well as the district court’s refusal to withhold judgment pending discovery under Rule 56(f). II. We begin by addressing jurisdiction. This Court had concerns that prior litigation in the state courts might have deprived us of jurisdiction to address retrospective relief under the Rooker-Feldman doctrine, as well as concerns that the Nation’s claim for prospective relief was moot because of legislation enacted by the New Mexico legislature in April 2005. The parties submitted supplemental briefing on both points, which we address" }, { "docid": "23522829", "title": "", "text": "this court to address the issue of qualified immunity. He notes that all of the defendants raised the defense of qualified immunity in their summary judgment motions but that the district court, in ruling on the merits, did not address that defense. Mr. Worrell contends that, in the event that we reverse summary judgment as to one or more of the defendants, the interests of judicial economy indicate that we should address the issue of qualified immunity in this appeal rather than allowing the defendants to reassert the defense on remand. Our precedent allows us to reach the qualified immunity issue if the parties have had an adequate opportunity to advance their arguments. See Andersen, 100 F.3d at 729 (“Because both parties fully argued the issue of qualified immunity before the district court and on appeal, and because we find that the proper resolution of this issue is apparent, we will consider this legal question.”). Here, the defendants raised the issue of qualified immunity in their summary judgment motions. However, because we have ruled in favor of the defendant Henry on the merits and because we are remanding the claims against Ms. Dodd and Mr. Atwood for further development, we will address only the defendant Mr. Turner’s qualified immunity claim. “Under the doctrine of qualified immunity, ‘government officials performing discretionary functions 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.’ ” Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 592-93 (10th Cir.1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); see also Workman v. Jordan, 958 F.2d 332, 336 (10th Cir.1992) (“If [defendants’] actions are those that a reasonable person could have believed were lawful, defendants are entitled to dismissal before discovery.”). In order for a right to be “clearly established” for purposes of assessing entitlement to qualified immunity: [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that" }, { "docid": "23386097", "title": "", "text": "Everson asserted a claim of emotional distress under Ohio law, and Defendants sought immunity from liability under O.R.C. ch. 2744. Title 28 U.S.C. § 1367 vests the district court with the authority to decide whether to exercise supplemental jurisdiction over state-law claims. The district court has not yet ruled on the matter. Accordingly, we do not address Defendants state-law immunity argument at this time. Ill For the reasons set forth above, the district court erred by ordering additional time for discovery without first addressing Defendants’ defense of qualified immunity. The district court’s decision to hold the motion for summary judgment in abeyance was a final judgment for purposes of this court’s jurisdiction on interlocutory appeal. On the merits, Sheriff Leis and Deputy Sheriff Wittich are entitled to qualified immunity on all of Everson’s federal claims, with the following exceptions: (A) because neither Sheriff Leis nor Deputy Sheriff Wittich have yet to seek qualified immunity on Everson’s ADA claim, we are without jurisdiction to reach that claim at this time; and (B) because Deputy Sheriff Wittich has yet to seek qualified immunity on Everson’s equal-protection claim, we are similarly without jurisdiction to reach that claim on interlocutory appeal. Accordingly, we REVERSE the district court’s decision to hold the dispositive motion in abeyance and REMAND this case to the district court for further proceedings consistent with this opinion. . Northgate Mall was dismissed from the case in January 2006. . After granting summary judgment to one defendant, the district court went on to hold in the same order, [A]ll parties and attorneys are here notified that any further motions in this case will not be ruled upon by the court prior to trial but will be carried along with the trial of the case on the merits. This ruling applies to any pending motions. Helton, 787 F.2d at 1017. This court in Kim-ble distinguished Helton on the grounds that, unlike Helton, there was no concern that the purpose of qualified immunity would be undercut because discovery had been stayed. Kimble, 439 F.3d at 335-36. In this sense, the present case is more" }, { "docid": "22170752", "title": "", "text": "shown, and the appeal is premature. See Garrett v. Stratman, 254 F.3d 946, 953 (10th Cir.2001) (“Prior to resolution of qualified immunity, ‘appellate jurisdiction is invoked when a defendant ... is faced with discovery that exceeds that narrowly tailored to the question of qualified immunity.’ ”) (quoting Lewis v. City of Fort Collins, 903 F.2d 752, 754 (10th Cir. 1990)); Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir.1987) (holding that a discovery order is not immediately appeal-able when a defendant is faced with discovery that is narrowly tailored to the question of qualified immunity); cf Lawson v. Abrams, 863 F.2d 260, 263 (2d Cir. 1988) (holding that appellate court lacked jurisdiction over interlocutory appeal where additional discovery was necessary to determine whether absolute or qualified immunity applied based on defendants’ conduct). Summers v. Leis, 368 F.3d 881 (6th Cir.2004), Defendants’ principal authority in support of their argument that appellate jurisdiction is appropriate here, is not on point. In Summers, the district court denied the defendant official’s summary judgment motion without prejudice to resubmission because it had determined that “any decision regarding qualified immunity was premature and should await the close of discovery.” Id. at 887. Thus, absent an interlocutory appeal, the defendant was certain to be subject to broad discovery obligations before obtaining appellate review of the qualified immunity motion. As we have already explained, that is not the case here. The district court in this case promptly ruled on the merits of Defendants’ qualified immunity defense — deferring only the summary judgment portion of the motion that involved disputed factual issues and, crucially, stayed discovery pending resolution of the motion to dismiss. No discovery at all has been ordered — much less broad-ranging discovery unmoored from the issue of qualified immunity. Before the district court, Defendants firmly resisted all discovery requests and contended that their motion to dismiss ought to be considered prior to any discovery. The court, reasonably, found the argument persuasive and suggested a pretrial sequence that would permit prompt resolution of the qualified immunity motion while holding discovery in abeyance. After getting the litigation" }, { "docid": "7905254", "title": "", "text": "have concluded that orders failing or refusing to consider qualified immunity are also immediately appealable. Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir.1986); Craft v. Wipf, 810 F.2d 170, 173 (8th Cir.1987); Musso v. Hourigan, 836 F.2d 736, 741 (2nd Cir.1988) (denial of summary judgment motion immediately appealable even though district court failed to address qualified immunity defense). We agree with this approach. Regardless of whether a district court merely postpones its ruling or simply does not rule on the qualified immunity defense, if we deny appellate review, a defendant loses the right not to stand trial. See Workman, 958 F.2d at 336. Accordingly, we may properly exercise jurisdiction over this appeal. II. We now turn to the merits. First, we must determine whether the district court abused its discretion by refusing to convert Defendants’ motion to dismiss into a motion for summary judgment. A motion to dismiss for failure to state a claim upon which relief can be granted must be converted into a motion for summary judgment whenever the district court considers matters outside the pleadings. Fed.R.Civ.P. 12(b)(6). As Defendants recognize, courts have broad discretion in determining whether or not to accept materials beyond the pleadings. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (1990). Reversible error may occur, however, if the district court considers matters outside the pleadings but fails to convert the motion to dismiss into a motion for summary judgment. Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). Such error is harmless if the dismissal can be justified under Fed.R.Civ.P. 12(b)(6) standards without consideration of the matters outside the pleadings. Id. at 1566. In the present case, the district court stated that it was not considering matters outside the pleadings and therefore would not convert the motion to dismiss into a motion for summary judgment. Defendants argue that the district court did in fact consider matters outside the pleadings. In support of this assertion, Defendants point to the following statements in the district court’s order: (1) that the Town of Fairland had a “board of trustees form" }, { "docid": "22170753", "title": "", "text": "because it had determined that “any decision regarding qualified immunity was premature and should await the close of discovery.” Id. at 887. Thus, absent an interlocutory appeal, the defendant was certain to be subject to broad discovery obligations before obtaining appellate review of the qualified immunity motion. As we have already explained, that is not the case here. The district court in this case promptly ruled on the merits of Defendants’ qualified immunity defense — deferring only the summary judgment portion of the motion that involved disputed factual issues and, crucially, stayed discovery pending resolution of the motion to dismiss. No discovery at all has been ordered — much less broad-ranging discovery unmoored from the issue of qualified immunity. Before the district court, Defendants firmly resisted all discovery requests and contended that their motion to dismiss ought to be considered prior to any discovery. The court, reasonably, found the argument persuasive and suggested a pretrial sequence that would permit prompt resolution of the qualified immunity motion while holding discovery in abeyance. After getting the litigation sequence they asked for, Defendants now seek an immediate appellate ruling on them summary judgment motion without allowing Plaintiffs the benefit of discovery relating to the core factual matters at issue on their defense of qualified immunity. We therefore lack jurisdiction over this portion of Defendants’ appeal; accordingly, it must be dismissed. Conclusion Under the plausibility standard forth in Twombly and further refined in Iqbal, Plaintiffs have not alleged a colorable claim of unconstitutional viewpoint discrimination against the Agents. They may be able to amend their complaint to include facts that will state a plausible claim, and thus the interests of justice would be served by granting them a chance to do so. The district court’s denial of qualified immunity is reversed and the case remanded for further proceedings consistent with this opinion, including granting Plaintiffs leave to amend their complaint. Defendants’ appeal from the district court’s deferral of their motion for summary judgment is dismissed. Each party shall bear its own costs on appeal. REVERSED and REMANDED, in part; DISMISSED, in part. APPENDIX ." }, { "docid": "1341675", "title": "", "text": "the court held that, “[i]f the deadline is missed, the order is not appealable. The defendant must then wait until another appealable order (normally, the final judgment) is entered, upon appeal of which he can challenge any interlocutory order that has not become moot.” Weir, 915 F.2d at 286. Wright argues that this appeal should be deemed as arising from, at the latest, the District Court’s March 15th Order denying the Appellants’ various motions for summary judgment. That argument overlooks one critical fact, however. The District Court did not explicitly rule on the Appellants’ immunity claims in its March 15th Order, nor at any time before or after. In its December 22, 1998 Order, the court characterized Wright’s federal claims as arising under Title VII. This, of course, temporarily took the immunity issues out of contention. Under Title VII, a public official may be held liable in her official capacity only, making the doctrine of qualified immunity, which protects only against personal liability, inapplicable. See Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir.1990) (“Because the doctrine of qualified immunity protects a public official from liability for money damages in her individual capacity only, the doctrine is inapplicable in the Title VII context.”). When the District Court corrected itself in its March 15th Order, the original motion for summary judgment on immunity grounds was still properly before it. The Appellants were entitled to believe that the District Court would eventually address their immunity claims at least until the court had denied all of their outstanding motions and set the case for trial. The District Court set the case for trial on April 29, and denied all of the Appellants’ outstanding motions on May 7. The Appellants clearly filed their May 7th notice of appeal, as well as their May 11th amended notice of appeal, within 30 days of those dates, and thus within Rule 4(a)’s time limit. Accordingly, we reject Wright’s argument that we must dismiss the Appellants’ appeal as untimely. 2. Jurisdiction over an Interlocutory Appeal Wright also raises an alternative challenge to our jurisdiction over this appeal. He" }, { "docid": "23386068", "title": "", "text": "district court can not avoid ruling on the issue.” Summers, 368 F.3d at 886 (citing Skousen, 305 F.3d at 520) (emphasis added). “Only after the [district] court inquires whether any facts material to [the plaintiffs] claims are genuinely at issue, and only upon a finding that material facts are in fact in dispute is a [district] court at liberty to hold a motion for summary judgment in abeyance pending additional discovery.” Id. (citing Skousen, 305 F.3d at 527). If a district court can thwart interlocutory appeal by refusing to address qualified immunity through abeyance rather than dismissal, then the district court can effectively ignore this court’s directive that district courts address qualified immunity promptly. Finally, the three factors used by the Supreme Court in Mitchell favor interlocutory appeal. As noted above, qualified immunity involves rights different from but collateral to those asserted in the action. As to the second factor, the district court’s order to hold the motion until after the completion of additional discovery cannot be undone on final appeal — the goal of minimizing an official’s exposure to unwarranted discovery will have already been undermined. On the third factor, the order conclusively determined Defendants’ claim of right to avoid further discovery. Applying this same analysis, the Fifth Circuit held in Helton v. Clements that a district court’s order declining or otherwise refusing to rule on a motion to dismiss based on qualified immunity is an immediately appealable order. 787 F.2d 1016, 1017 (5th Cir.1986). The Second Circuit came to a similar conclusion in Smith v. Reagan, 841 F.2d 28, 31 (2d Cir.1988) (concluding that a district court’s order holding in abeyance a motion to dismiss on immunity grounds was immediately appealable, and reasoning: “The failure of the district court to decide the State’s motion does not alter the State’s right to have an early determination of its claim of immunity. By holding the decision in abeyance pending the completion of all discovery in the case, the district court effectively denied that right.”). For these reasons, we find that a district court’s decision to hold in abeyance a motion" }, { "docid": "17264174", "title": "", "text": "of a motion to dismiss on the basis of qualified immunity and a subsequent denial of summary judgment on the basis of such immunity”). Of course, in this case the district court did not actually deny the motion to dismiss, but instead deferred ruling on the motion and lifted its discovery stay, permitting discovery on the issue of absolute immunity. But we see this as a distinction without a difference. As the Supreme Court has explained, absolute immunity creates not only protection from liability, but also the right not to have to answer for one’s actions at all. See Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (explaining that “the essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action”). A litigant is therefore entitled to a ruling on a motion to dismiss on the pleadings based on official immunity before the commencement of discovery. Id. at 526, 105 S.Ct. 2806 (recognizing that “[ujnless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery”). We conclude that the district court’s ruling deferring decision on the motion to dismiss and lifting the stay of discovery was tantamount to a denial of the motion. Accordingly, lest form be exalted over substance, we hold that the district' court’s order is sufficient to support our jurisdiction over this appeal. See also Lollar v. Baker, 196 F.3d 603, 606 n. 3 (5th Cir.1999) (concluding, where the district court declined to rule on a motion to dismiss based on qualified immunity and instead ordered discovery limited to issues relating to that defense, that “the grant of a plaintiffs discovery request in such a circumstance constitutes a denial of the defendant’s claim of qualified immunity from which the defendant is entitled to an immediate appeal”). III We now proceed to the merits. The complaint alleges that Nevada child service workers Gammie and Zito violated Earl’s constitutional rights by intentionally failing to disclose, by misrepresenting," }, { "docid": "23386065", "title": "", "text": "from unwarranted discovery. Id. at 527. The panels in Summers v. Leis, 368 F.3d 881 (6th Cir.2004), and Wallin v. Norman, 317 F.3d 558 (6th Cir.2003), came to the same conclusion under similar procedural backgrounds. In arguing against jurisdiction, Everson relies upon this court’s decision in Kimble v. Hoso, 439 F.3d 331 (6th Cir.2006). The court in Kimble concluded that it did not have jurisdiction on interlocutory appeal over a defendant’s motion for summary judgment on qualified immunity. In the proceedings below, the district court had stayed discovery until the question of qualified immunity could be resolved. Id. at 333. Plaintiffs counsel failed to file a response brief by the deadline; eventually, the district court ordered that plaintiffs counsel obtain co-counsel to assist. Id. Co-counsel entered the case, but requested another extension of time to file a response. Id. The district court granted the extension, and the defendants appealed. Id. The court held that Kimble’s case differed from Skousen in two critical ways. First, there was no order by the district court in Kimble’s case actually dismissing without prejudice the summary-judgment motion. Id. at 335. Without an order to appeal, the court believed that the issue of qualified immunity had not been conclusively determined. Id. Second, the court noted that “the district court did not delay ruling on the defendants’[ ] motion for the legally erroneous reason of permitting further discovery.” Id. The court went on to explain that with discovery stayed, “[t]his type of delay, which does not require the defendants to face any additional stages of litigation, does not undercut the essential purpose of qualified immunity.” Id. Here, we are faced with an appeal set between the Skousen line of cases and Kimble. Like Kimble and unlike the Skousen line, the district court did not deny or dismiss without prejudice Defendants’ motion for summary judgment. Yet, like the Skousen line and unlike Kim-ble, the district court did permit additional discovery without first resolving the question of qualified immunity. The question becomes, then, whether this case is more like Kimble or more like the Skousen line. We side with" }, { "docid": "22822490", "title": "", "text": "Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1982)); see Workman v. Jordan, 958 F.2d 332, 335 (10th Cir.1992) (qualified immunity, if successful, protects official both from liability and ordinary burdens of litigation, including far-ranging discovery); Lewis v. City of Fort Collins, 903 F.2d 752, 754 (10th Cir.1990) (same). However, when qualified immunity is raised as a defense, there is a narrow right to discovery limited to the issue of qualified immunity. Maxey v. Fulton, 890 F.2d 279, 282 (10th Cir.1989). This narrow discovery is allowed to make these determinations: If the actions are not those that a reasonable person could have believed were lawful, then discovery may be necessary before a motion for summary judgment on qualified immunity grounds can be resolved. However, any such discovery must be tailored specifically to the immunity question. Workman, 958 F.2d at 336. The plaintiff is required “to demonstrate how discovery will raise a genuine fact issue as to [the defendants’] qualified immunity claim.” Lewis, 903 F.2d at 758. Here we have no showing that there was an abuse of the limitations for discovery on the qualified immunity issue. In fact, qualified immunity was only raised at the last minute. Thus, our question is whether the trial judge abused his discretion by requiring defendants to reimburse costs and expenses incurred by plaintiff as a result of defendants’ untimely actions and their inadequate explanations for them. Just as the trial court’s determinations on allowing or denying discovery are discretionary, see Graham v. Gray, 827 F.2d 679, 681 (10th Cir.1987), so is the imposition of reasonable conditions on the granting of a stay of discovery. This is also consistent with the trial judge’s authority to order the payment of expenses under Rule 37(a) & (b) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 37(a) & (b). Here, because the defendants’ last-minute filing of their motions on qualified immunity caused the plaintiff to incur unnecessary expenses (including the cost of an unrefundable plane ticket), the trial" }, { "docid": "23134388", "title": "", "text": "death. After completion of discovery, defendants moved for summary judgment. All claims against the City of Cleveland were voluntarily dismissed with prejudice. Subsequently, the district court issued a 54-page opinion denying Habeeb’s and Kraynik’s motion for summary judgment, concluding they are not entitled to qualified immunity on either the federal or state law claims because there are outstanding questions of fact. This appeal timely followed. II. JURISDICTION A threshold question we must answer is whether the court has jurisdiction to hear this appeal. Ordinarily, the denial of a motion for summary judgment is an interlocutory ruling, not a “final order,” and is not subject to immediate appeal. 28 U.S.C. § 1291; Harrison v. Ash, 539 F.3d 510, 521 (6th Cir.2008). Yet, it is well-established that an order denying qualified immunity to a public official is immediately appealable pursuant to the “collateral order” doctrine. Harrison, 539 F.3d at 521; Leary v. Livingston County, 528 F.3d 438, 447 (6th Cir.2008). This exception is narrow, however. Appellate jurisdiction exists “only to the extent that a summary judgment order denies qualified immunity based on a pure issue of law.” Leary, 528 F.3d at 447-48 (quoting Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir.2006)). Plaintiff Chappell correctly points out that the district court’s denial of qualified immunity is not based on a pure question of law, but on two clearly identified factual issues. Yet, the district court’s characterization of the basis for its ruling does not necessarily dictate the availability of appellate review. Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 402-03 (6th Cir.2007); Estate of Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir.2005). If, apart from impermissible arguments regarding disputes of fact, defendants raise purely legal issues bearing on their entitlement to qualified immunity, then there are issues properly subject to appellate review. Livermore, 476 F.3d at 403; Estate of Carter, 408 F.3d at 310. Hence, the district court’s determination that there is a factual dispute does not necessarily preclude appellate review where, as defendants here contend, the ruling also hinges on legal errors as to whether" }, { "docid": "7905253", "title": "", "text": "immunity, but the district court did not address it in regard to two of Plaintiffs federal claims. The parties assume that the district court denied qualified immunity as to all the federal claims. However, a review of the district court’s order reveals that the court did not address qualified immunity in regard to Plaintiffs First Amendment and equal protection claims. Because the district court did not deny qualified immunity, we may lack jurisdiction over this interlocutory appeal. Although the parties have not raised this issue, we have an “independent duty” to inquire into our jurisdiction. See Phelps p. Hamilton, 122 F.3d 1309, 1315-16 (10th Cir.1997). We must, therefore, address sua sponte whether we have jurisdiction over this appeal. We have previously concluded that we have jurisdiction over an appeal from an order postponing a decision on qualified immunity. Workman v. Jordan, 958 F.2d 332, 336 (10th Cir.1992). In Workman, we reasoned that unless such orders are immediately appealable, a defendant loses his right to be free from the burdens of discovery and trial. Other circuits have concluded that orders failing or refusing to consider qualified immunity are also immediately appealable. Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir.1986); Craft v. Wipf, 810 F.2d 170, 173 (8th Cir.1987); Musso v. Hourigan, 836 F.2d 736, 741 (2nd Cir.1988) (denial of summary judgment motion immediately appealable even though district court failed to address qualified immunity defense). We agree with this approach. Regardless of whether a district court merely postpones its ruling or simply does not rule on the qualified immunity defense, if we deny appellate review, a defendant loses the right not to stand trial. See Workman, 958 F.2d at 336. Accordingly, we may properly exercise jurisdiction over this appeal. II. We now turn to the merits. First, we must determine whether the district court abused its discretion by refusing to convert Defendants’ motion to dismiss into a motion for summary judgment. A motion to dismiss for failure to state a claim upon which relief can be granted must be converted into a motion for summary judgment whenever the district court considers" }, { "docid": "9795503", "title": "", "text": "POLITZ, Chief Judge: Hazel Cook appeals the district court’s denial of a protective order preventing all discovery prior to consideration of her motion to dismiss. For the reasons assigned, we reverse and remand for further proceedings consistent herewith. Background George Wicks, Sr., an African-American male, applied for a management position with his employer, the Mississippi State Employment Service. The promotion was given to a white employee. Wicks filed suit against MSES and Hazel Cook, a former supervisor of Wicks, asserting both a racial discrimination claim and a first amendment claim. On April 13, 1994 Cook contemporaneously filed two motions: (1) a “Motion to Dismiss, or in the Alternative, for Summary Judgment,” which asserted the defense of qualified immunity and (2) a “Motion to Hold Discovery in Abeyance” pending the consideration of Cook’s qualified immunity defense. With the motion to dismiss pending before the district court, the discovery motion was referred to a magistrate judge who issued an order staying all discovery except for that related to Cook’s defense of qualified immunity. Cook objected to this limited discovery order and the district court affirmed the magistrate judge. Cook appeals the order allowing discovery on the issue of qualified immunity. The motion to dismiss remains pending before the district court. Analysis Wicks vigorously maintains that we are without subject matter jurisdiction to hear this appeal of a discovery order. “Ordinarily, an order compelling limited discovery is interlocutory and not appealable under the final judgment rule....” The Supreme Court has held, however, that orders denying substantial claims of qualified immunity are immediately appealable under the collateral order doctrine. Cook equally vigorously contends that in allowing limited discovery on the issue of qualified immunity, the district court effectively has denied her the benefits of the qualified immunity defense, the most relevant being the protection from pretrial discovery. Thus, she argues, the district court’s order is appealable immediately under the collateral order doctrine and this court has appellate jurisdiction. We hold today that the discovery order denied Cook the benefits of the qualified immunity defense, thereby vesting this court with the requisite jurisdiction to review" }, { "docid": "22387540", "title": "", "text": "served by remanding the case to the district court simply to require that it rehear the motion for summary judgment and deny it. CONCLUSION For the foregoing reasons, we reverse the order of the district court insofar as it denied summary judgment to defendants Barraco, Moritsugu and Quinlan, and vacate the district court’s dismissal of the complaint as to Hershberger, Moore, Ma-lik, and Salamack. We remand for summary judgment to be entered for Barraco and Moritsugu on absolute immunity grounds pursuant to 42 U.S.C. § 233(a) and for Quinlan, Hershberger, Moore, Ma-lik, and Salamack on qualified immunity grounds. . We therefore refer to the plaintiff using female pronouns. . We limit this jurisdictional ruling to cases in which our resolution of the interlocutory appeal obviates the need to dismiss the appeal of the partial judgment. . It is not clear from the record whether Malik and Salamack were Public Health Service officials. If they were, absolute immunity under 42 U.S.C. § 233(a) would protect them. See section I.C., above. . Cuoco argues in passing that the district court's dismissal was \"especially wrong in light of the fact that the District' Court had stayed discovery.” Cuoco br. at 54. Cuoco is apparently complaining that she was prevented from obtaining all the discovery she sought prior to the district court’s adjudication of the defendants’ motion to dismiss and for summary judgment. This single, conclusory, one-sentence argument is insufficient to preserve any issue for appellate review. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (\"Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”). Even if this issue had been fairly presented, moreover, we see no reason to expect that discovery would have helped Cuoco establish a triable issue of material fact. And we are particularly reluctant to remand for unnecessary discovery because this case revolves around questions of absolute and qualified immunity. One of the purposes of conferring immunity on public officials is to avoid the substantial \"social costs” that litigation can impose on them, see Anderson v. Creighton, 483 U.S." }, { "docid": "7760199", "title": "", "text": "for trial only on those particular claims. Although the officers were entitled to qualified immunity as to their actual decision to stop the vehicle, they were not enti- tied to such a determination as to their alleged use of excessive force in carrying out the seizure and search. Of course, at a trial, the reasonableness of what the Appellees actually did may be established, in which case qualified immunity could then be deemed proper. III. Denial of Motion for Continuance The Appellants additionally assert on appeal that the district court erred in denying their motion for continuance of the summary judgment hearing in order to allow for time to conduct discovery on the issue of qualified immunity. Because the case law suggests that discovery should have been afforded, we find that the district court erred in staying discovery into the Appellees’ entitlement to qualified immunity or lack thereof. The Supreme Court, in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), expressly addressed the standard under which discovery on the issue of qualified immunity should be afforded, when qualified immunity is claimed at the summary judgment stage of litigation. In that case, the district court had granted summary judgment to the police officers before any discovery occurred. In a footnote, the Court addressed the plaintiffs’ claim that because no discovery had yet taken place, some discovery would be required before the defendants’ summary judgment motion could be granted. 483 U.S. at 646 n. 6, 107 S.Ct. at 3042 n. 6. In particular, the Court held: One of the purposes of the Harlow qualified immunity standard is to protect public officials from the “broad-ranging discovery” that can be “peculiarly disruptive of effective government.” For this reason, we have emphasized that qualified immunity questions should be resolved at the earliest possible stage of litigation. Thus, on remand, it should first be determined whether the actions the [plaintiffs] allege [the officer] to have taken are actions that a reasonable officer could have believed lawful. If they are, then [the officer] is entitled to dismissal prior to discovery. If they" }, { "docid": "22822489", "title": "", "text": "counsel for the defendants had conferred in good faith with opposing counsel prior to moving for a protective order. In order to evaluate the circumstances surrounding the motions, the district judge requested that counsel for the defendants supply information explaining the last-minute filing of the motions regarding qualified immunity. The defendants complied with that requirement, and the district judge subsequently granted their motion for a protective order. However, the judge found that the explanations offered for the late filing were inadequate, and therefore, as a condition for granting a stay of discovery, the judge required the defendants to pay all out-of-pocket expenses and attorney’s fees which Cole had incurred in preparing for the can-celled depositions. Cole v. Ruidoso Mun. Schs., 137 F.R.D. 357 (D.N.M.1991). It is of course basic that qualified immunity is an important protection against subjecting government officials “either to the costs of trial or to the burdens of broad-reaching discovery” in cases where the legal norms the officials are alleged to have violated were not clearly established at the time. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1982)); see Workman v. Jordan, 958 F.2d 332, 335 (10th Cir.1992) (qualified immunity, if successful, protects official both from liability and ordinary burdens of litigation, including far-ranging discovery); Lewis v. City of Fort Collins, 903 F.2d 752, 754 (10th Cir.1990) (same). However, when qualified immunity is raised as a defense, there is a narrow right to discovery limited to the issue of qualified immunity. Maxey v. Fulton, 890 F.2d 279, 282 (10th Cir.1989). This narrow discovery is allowed to make these determinations: If the actions are not those that a reasonable person could have believed were lawful, then discovery may be necessary before a motion for summary judgment on qualified immunity grounds can be resolved. However, any such discovery must be tailored specifically to the immunity question. Workman, 958 F.2d at 336. The plaintiff is required “to demonstrate how discovery will raise a genuine fact issue as" }, { "docid": "11173463", "title": "", "text": "district court’s denial of the officials’ motion for summary judgment; and remand with instructions to decide whether the officials are entitled to qualified immunity, first on the pleadings under Federal Rule of Civil Procedure 12(b)(6) and, if not, then on the record under Federal Rule of Civil Procedure 56(a). To the extent the majority’s vague judgment deviates from this course, I respectfully dissent. A. Jurisdiction I think it important to begin by emphasizing our precedent that our court’s “jurisdiction to review the qualified immunity issue on interlocutory appeal depends upon whether the district court actually ruled on the issue.” Bradford v. Huckabee (Bradford I), 330 F.3d 1038, 1040 (8th Cir.2003) (emphasis added). A casual reader might think this statement means we lack jurisdiction unless the district court makes a merits determination as to qualified immunity, but that reading is foreclosed by Bradford I itself: we exercised jurisdiction to “remand to the district court for such a determination,” 330 F.3d at 1041 (emphasis added). The Bradford I opinion’s reference to “jurisdiction to hear th[e] appeal,” id. (emphasis added), merely meant our court would not reach the merits of a qualified immunity question in a case where the district court, whether intentionally or through neglect, failed to answer the question (i.e., “actually ruled”). As the court’s opinion explains, ante at 700-01, we have long exercised our interlocutory jurisdiction to order district courts to issue the necessary qualified immunity rulings when they fail to do so. See, e.g., Robinson v. Mericle, 56 F.3d 946, 947 (8th Cir.1995); Parton v. Ashcroft, 16 F.3d 226, 228 (8th Cir.1994); Craft v. Wipf, 810 F.2d 170 (8th Cir.1987) (per curiam). Most circuits follow our approach. See, e.g., Wallin v. Norman, 317 F.3d 558, 563 (6th Cir.2003) (“[T]he district court’s refusal to address the merits of the defendants’ motion based on qualified immunity was a conclusive determination for the purpose of allowing an interlocutory appeal.”); Lowe v. Town of Fairland, Okla., 143 F.3d 1378, 1380 (10th Cir.1998) (same); Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir.1997) (same); Collins v. Sch. Bd. of Dade Cnty., Fla., 981 F.2d" } ]

[ { "docid": "22114016", "title": "", "text": "Justice Stevens delivered the opinion of the Court. Petitioner Thomas West brought a “hybrid” suit against his employer, his union, and his union representative under the Railway Labor Act. He alleged that the employer had breached the collective-bargaining agreement and that the union and its representative had breached their duty of fair representation. The parties agree, for the purpose of our review of the Court of Appeals’ judgment, that petitioner’s cause of action accrued on March 25,1984, the date petitioner learned of the alleged breach of the union’s duty of fair representation. His complaint was filed on September 24, 1984, less than six months after the statute of limitations began to run. The summonses and complaints were mailed to respondents on October 10, 1984. Respondents acknowledged service of the complaint on dates ranging from October 12, 1984, through November 1, 1984. Thus, both the date on which the complaints were mailed and the date when the first acknowledgment of service was made were more than six months after the statute began to run. Because service was not effected within the 6-month period prescribed in § 10(b) of the National Labor Relations Act, the District Court granted respondents’ motion for summary judgment. App. to Pet. for Cert. 15a. The Court of Appeals for the Third Circuit affirmed. 780 F. 2d 361 (1986). We granted certiorari, 478 U. S. 1004 (1986), because the Third Circuit’s decision is at odds with a decision of the Court of Appeals for the Sixth Circuit, Macon v. ITT Continental Baking Co., 779 F. 2d 1166 (1985), cert. pending, No. 85-1400. Congress did not enact a federal statute of limitations that is expressly applicable to federal duty of fair representation claims. In DelCostello v. Teamsters, 462 U. S. 151 (1983), we filled that gap in federal law by deciding that the 6-month period prescribed in § 10(b) should be applied to hybrid claims under § 301 of the Labor Management Relations Act, 1947, 29 U. S. C. § 185. Section 10(b) authorizes the National Labor Relations Board (NLRB) to issue a complaint when a charging party asserts" } ]

[ { "docid": "11273703", "title": "", "text": "his claim against Local 399 and ConocoPhillips under Section 301 of the Labor Management Relations Act. See 29 U.S.C. § 185. That section gives federal courts jurisdiction over suits to enforce the terms of collective bargaining agreements. Id. Nemsky’s claim is a so-called “hybrid 301” action because he has sued Local 399 for breaching its duty of fair representation and his employer for breaching the collective bargaining agreement. Crider, 130 F.3d at 1241 (citing Ooley v. Schwitzer Div., Household Manufacturing., Inc., 961 F.2d 1293, 1297-98 (7th Cir.1992)). These two parts of Nemsky’s claim are “inextricably interdependent”: he must establish both parts of his hybrid claim in order to prevail. McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 613 (7th Cir.2001) (citing DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)). “[Njeither claim is viable if the other fails.” Crider, 130 F.3d at 1241 (citing White v. General Motors, 1 F.3d 593, 595 (7th Cir.1993)). A. Duty of Fair Representation The first part of Nemsk/s hybrid suit is his claim against Local 399 for breach of the duty of fair representation. “ ‘National labor policy has been built on the premise that by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining. ...’ ” McLeod, 258 F.3d at 612—613 (quoting NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967)). However, when individuals join together, “the complete satisfaction of all who are represented is hardly to be expected.” Id. (quoting Allis-Chalmers, 388 U.S. at 180, 87 S.Ct. 2001). Nonetheless, employees are bound by the union’s actions. See id. To balance the power bestowed upon a union to exclusively represent all employees in employment disputes, “ ‘a concomitant duty of fair representation [is owed by the union] to each of its members.’ ” Id. (quoting Garcia v. Zenith Elecs. Corp., 58 F.3d 1171, 1176 (7th Cir.1995)). A union breaches its duty to fairly represent a member where its" }, { "docid": "18580512", "title": "", "text": "GODBOLD, Chief Judge: In Part III of our opinion we held that Proudfoot’s cause of action against his employer, Crowley, accrued when Crowley dismissed Proudfoot on January 17, 1983, and, since Proudfoot’s complaint was not filed until April 16, 1984, the cause of action against Crowley was barred by the six-month period allowed in which to sue. On reconsideration we conclude this holding was incorrect. The Supreme Court in DelCostello v. International Brotherhood, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) held that the six-month statute of limitations prescribed by § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), applies to hybrid suits under § 301 alleging that the employer has breached the collective bargaining agreement and that the union has breached its duty of fair representation. The Court in DelCostello did not decide when the six-month period begins to run. But the Court acknowledged that a § 301 hybrid suit actually involves two separate actions: one against the employer under § 301 for breach of the collective bargaining agreement and one against the union for breach of its implied duty of fair representation. 462 U.S. at 164, 103 S.Ct. at 2290. Although these causes of action are distinct, they are interdependent. To prevail on his claim against the employer, the employee must prove not only that the employer breached the collective bargaining agreement but also that the union violated its duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. To prevail against the union, in addition to proving that the union did not discharge the duty it owed him the employee must also show that the employer’s actions violated the collective bargaining agreement. Hines v. Anchor Motor Freight, 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976); DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. Thus the separate causes of action accrue simultaneously. The general rule is that § 10(b)’s six-month limitation period starts running when the plaintiff was or should" }, { "docid": "4516985", "title": "", "text": "S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Holt, 95 F.3d at 129. However, the substantive law governing the case will identify those facts that are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “A ‘genuine’ dispute over a material fact only arises if the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” Dister, 859 F.2d at 1112. Hence, 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). “Mere speculation or conjecture” will not suffice, see Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990), nor will “reliance on unsupported assertions,” Goenaga, 51 F.3d at 18. Rather, the non-moving party must provide “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. II. Plaintiffs “Hybrid” Cause of Action Plaintiffs Amended Complaint alleges that the USPS violated the CBA by removing him from Assignment 131, see Am. Compl. ¶¶ 9-10, 14, and that the Union subsequently breached its duty of fair representation by refusing to represent him in the grievance process, see Am. Compl. ¶¶ 11-12, 15-16; see also DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); Vaca v. Sipes, 386 U.S. 171, 184-86, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). In the typical “hybrid” action, the employer’s duty to honor the collective bargaining agreement is governed by section 301 of the Labor Management Relations Act (the “LMRA”), 29 U.S.C. § 185, and the union’s duty of fair representation is implied from section 9(a) of the National Labor Relations Act (the “NLRA”), 29 U.S.C. § 159(a). See DelCostello, 462 U.S. at 164, 103 S.Ct. 2281; White v. White Rose Food, 128 F.3d 110, 113" }, { "docid": "15258196", "title": "", "text": "heart of the appeal — whether, on the facts before us, NHI was entitled to summary judgment. As we noted at the outset, the appellants have filed hybrid section 301/fair representation suits claiming that NHI breached the collective bargaining agreement and that GCIU breached the duty of fair representation it owes to its members. See Reed v. United Transp. Union, 488 U.S. 319, 328, 109 S.Ct. 621, 627, 102 L.Ed.2d 665 (1989); McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 612-13 (7th Cir.2001). In order for a plaintiff to prevail in such an action, he must have a meritorious claim against both the union and the employer; the claims are interlocking in the sense that neither is viable if the other fails. Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238, 1241 (7th Cir.1997). Thus it is that NHI sought and obtained summary judgment on the ground that GCIU did not breach the duty of fair representation that it owed to Neal and Brandon as union members — without a valid claim for breach of the duty of fair representation, the plaintiffs cannot proceed against NHI. Id. at 1241, 1243; McKelvin v. E.J. Brach Corp., 124 F.3d 864, 869 (7th Cir.1997). We must therefore decide whether the facts, viewed favorably to Neal and Brandon, would sup port a finding that GCIU did breach the duty of fair representation. See id. at 868. We conclude that they would not. A union breaches the duty of fair representation only if its actions are arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). Each of these possibilities must be considered separately in determining whether or not a breach has been established. See Ooley v. Schwitzer Div., Household Mfg. Inc., 961 F.2d 1293, 1302 (7th Cir.1992), discussing Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991); see also, e.g., Filippo v. Northern Indiana Public Serv. Corp., supra, 141 F.3d at 748-49; Crider, 130 F.3d at 1243. We may quickly dispose of the latter two" }, { "docid": "5031574", "title": "", "text": "its duty of fair representation to White, his cause of action against Detroit Edison must necessarily fail as a matter of law. II This Court reviews a district court’s grant of summary judgment de novo, and must view “the facts and any inferences that can be drawn from those facts ... in the light most favorable to the non-moving party.” Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir.2005) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Summary judgment is only appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (quoting Fed.R.Civ.P. 56(c)). A. Summary Judgment in Favor of Detroit Edison This Court’s precedent in Roeder v. American Postal Workers Union, 180 F.3d 733 (6th Cir.1999), forecloses any argument that the district court erred in granting summary judgment for Detroit Edison in its supplemental order. In Roeder, the plaintiff brought a hybrid § 301/duty-of-fair-representation claim similar to that brought by White. The plaintiff in Roeder claimed the United States Postal Service had terminated him in violation of the just-cause provisions of his union’s collective bargaining agreement. Id. at 736. Because he was displeased with the outcome of the union’s grievance process — in which his grievance was submitted to arbitration, where he lost — the plaintiff tacked on a complaint against his union for breach of the duty of fair representation. Id. at 736-37. This Court ruled: To prevail on his hybrid § 301/fair representation claim, Roeder must satisfy a two-prong test. First, Roeder must prove that, by terminating him on less than “just cause” grounds, the Postal Service breached the terms of its CBA with the Union. Second, Roeder must show that in representing him during the grievance process leading to arbitration, the Union breached its duty of fair representation owed to him. Liability cannot attach to the" }, { "docid": "16608861", "title": "", "text": "subsequent negative reviews might indicate a retaliatory motive. Plaintiffs poor work assessments, however, began as soon as he commenced employment. Under such circumstances, no retaliatory motive can be inferred. In sum, the nexus between Miller’s knowledge of plaintiffs EEO filing and plaintiffs employment difficulties is extremely attenuated. As the Supreme Court has articulated, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. No such competent evidence having been presented in the instant action, summary judgment in favor of the Postal Service is warranted. C. Breach of Contract/Duty of Fair Representation In Count III of his complaint, plaintiff alleges that the Postal Service breached its collective bargaining agreement by terminating him for discriminatory reasons. He also contends that NALC breached its duty of fair representation by failing to raise certain discrimination charges at his discharge hearing. The Supreme Court has denominated this type of joint cause of action as a “hybrid suit,” encompassing two separate but interrelated claims. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476 (1983). The suit against the Postal Service is predicated on an alleged breach of the collective bargaining agreement, thereby falling under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). See id. at 164,103 S.Ct. at 2290-91. The duty of fair representation claim against NALC arises implicitly under the National Labor Relations Act’s statutory scheme. See id. at 164 & n. 14, 103 S.Ct. at 2290 & n. 14 (citing Vaca v. Sipes, 386 U.S. 171,177, 87 S.Ct. 903, 909-10, 17 L.Ed.2d 842 (1967)). Because the two claims in a hybrid suit are “inextricably interdependent,” a plaintiff may not prevail against either his employer or his union unless he establishes that his discharge contravened the collective bargaining agreement and that his union breached its duty of fair representation. Id. at 164-65, 103 S.Ct. at 2290-91; see also Edwards v. International Union," }, { "docid": "2476086", "title": "", "text": "of employment_” 29 U.S.C. § 159(a) (1988). It has now been well established that a union certified as an exclusive bargaining representative has a correlative duty of fair representation. In Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967), the seminal case on the statutory duty of fair representation, the Supreme Court reviewed the history of its recognition of such a duty, which began with cases under the Railway Labor Act, 45 U.S.C. § 151 et seq. (1988), alleging racial discrimination by unions, see Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 202-04, 65 S.Ct. 226, 232-33, 89 L.Ed. 173 (1944); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187 (1944), and was extended shortly thereafter to the NLRA, see Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38, 73 S.Ct. 681, 685-86, 97 L.Ed. 1048 (1953). Jurisdiction over a claim that a union has breached its duty of fair representation is based on 28 U.S.C. § 1337(a) (1988) (covering “any civil action or proceeding arising under any Act of Congress regulating commerce”), see Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 83, 110 S.Ct. 424, 434, 107 L.Ed.2d 388 (1989), whereas an employee’s claim directly against the employer for breach of a collective bargaining agreement after the union failed to process the grievance is filed under section 301(a) of the LMRA, 29 U.S.C. § 185(a) (1988). Ordinarily, an employee files a claim against the union alleging breach of the duty of fair representation together with a claim against the employer alleging breach of the collective bargaining agreement in a “hybrid” section 301/duty of fair representation suit. In the “hybrid” suit, the plaintiff will have to prove that the employer breached the collective bargaining agreement in order to prevail on the breach of duty of fair representation claim against the union, and vice versa. See United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66-67, 101 S.Ct. 1559, 1565-66, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring" }, { "docid": "500182", "title": "", "text": "district court. Summary judgment is granted if there is no genuine issue of material fact for trial. Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1356 (10th Cir.1994). A party who moves for summary judgment under Rule 56 “is not required to provide evidence negating an opponent’s claim. Rather, the burden is on the nonmovant, who ‘must present affirmative evidence in order to defeat a properly supported motion for summary judgment.’” Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir.1992) (citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986)). B. The Duty of Fair Representation and Its “Wide Range of Reasonableness” Mr. Young’s claim is a “hybrid” federal labor claim. In order to prevail Mr. Young must prove (1) that the Union breached its duty of fair representation and (2) that UAW-LETC discharged Mr. Young in violation of its collective bargaining agreement with the Union. See Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 564, 110 S.Ct. 1339, 1344, 108 L.Ed.2d 519 (1990); Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 530-31 (10th Cir.1992). The sole issue raised by UAW-LETC’s motion for summary judgment is whether the Union breached its duty of fair representation under federal labor law. As both parties correctly state, “[a] union breaches its duty of fair representation if its conduct toward a member is ‘arbitrary, discriminatory, or in bad faith.’” Aguinaga v. United Food & Commercial Workers Int’l Union, 993 F.2d 1463, 1470 (10th Cir.1993) (quoting Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967)), cert. denied, 510 U.S. 1072, 114 S.Ct. 880, 127 L.Ed.2d 75 (1994). Mr. Young argues that the Union’s conduct was arbitrary. “[A] union may not arbi trarily ignore a meritorious grievance or process it in perfunctory fashion....” Vaca, 386 U.S. at 191, 87 S.Ct. at 917. The Supreme Court recently stated that “a union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions," }, { "docid": "22135300", "title": "", "text": "some evidence on a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), there is no issue for trial unless there is sufficient evidence favoring the nonmov-ing party for a jury to return a verdict for that party. If the [nonmovant’s] evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 249-50, 106 S.Ct. at 2511 (citations omitted); see Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The standard for summary judgment mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Consequently, a nonmovant must do more than raise some doubt as to the existence of a fact; the nonmovant must produce evidence that would be sufficient to require submission to the jury of the dispute over the fact. III. SUMMARY JUDGMENT MOTIONS To prevail in an action under section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, an employee must prove both that the employer breached the CBA and that the union breached its duty of fair representation. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Both defendants initially argue that summary judgment should be granted because plaintiff cannot show Local 614 breached its duty of fair representation. A breach of the statutory duty of fair representation occurs only when a union’s conduct is arbitrary, discriminatory, or in bad faith, or when the union handles the grievance in a perfunctory or arbitrary manner. Vaca, 386 U.S. at 192, 87 S.Ct. at 917. Ordinary negligence, mistake, error, or flaws in judgment by the union representative do not constitute a breach of the union’s duty. Deringer v. Columbia Transp. Div., Oglebay Norton, 866 F.2d 859 (6th Cir.1989); Poole v. Budd Co.," }, { "docid": "4992806", "title": "", "text": "granted `against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'\" White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir.1988) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. at 2552). Consequently, \"a 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 a genuine issue of material fact.\" Anderson, supra 477 U.S. at 248, 106 S.Ct. at 2510 (emphasis in original). As one would expect, in a §. 301 hybrid suit, the ultimate burden of persuasion remains with the plaintiff to prove that the collective bargaining agreement was violated by her employer and that the Union breached its duty to represent fairly that employee's interest. Generally, to establish a breach of the duty of fair representation, an employee must show that the Union's conduct was arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967); DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 165, 103 S.Ct. 2281, 2291, 76 L.Ed.2d 476 (1983) (in order to prevail in hybrid § 301 suits, an employee must establish (1) that the employer breached the collective bargaining agreement and (2) that the union breached its duty of fair representation). Labor unions owe their members a duty of fair representation because they are invested by statute with the power to bargain exclusively on the behalf of their membership; unions thus may not use their power intentionally to disadvantage certain members of the bargaining unit. Steele v. Louisville & Nashville R.R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). In assessing the duty of fair representation, the union must be accorded a \"wide range of reasonableness\" to enable it to perform effectively, but this discretion is subject to \"good faith and honesty of purpose.\" Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-64, 96 S.Ct. 1048, 1056," }, { "docid": "23176237", "title": "", "text": "(7th Cir.1990); Fed. R.Civ.P. 56(c). In reviewing this grant of summary judgment, we will view the facts in the light most favorable to the plaintiffs, the nonmoving party. A-Abart Elec. Supply Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1401-02 (7th Cir.1992). B. Relationship Between Contract Claim and Duty of Fair Representation Claims The plaintiffs claim that the Steelworkers Union breached its duty of fair representation in the negotiation, ratification and arbitration processes. This claim is brought under Section 301 of the Labor-Management Relations Act (“LMRA”). See 29 U.S.C.A. § 185. The plaintiffs’ claim against Schwitzer is also brought under Section 301 of the LMRA. See id. This claim is based on breach of the Collective Bargaining Agreement (“CBA”). Article 31 of the CBA, however, requires that employee grievances should be resolved through union/company meetings and that the final step in the grievance process should be binding arbitration. “Courts are not to usurp those functions which collective-bargaining contracts have properly ‘entrusted to the arbitration tribunal.’ ” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562-63, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976) (citing Steelworkers v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1345, 4 L.Ed.2d 1403 (1960)). Accordingly, federal courts should review allegations that an employer breached a collective bargaining agreement that con tains an arbitration clause only when the employee can prove that “ ‘the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.’ ” Id. at 566, 96 S.Ct. at 1057 (citing Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967)). Therefore, in order to prevail against Schwitzer, the plaintiffs must show that the Steelworkers Union breached its duty to fairly represent the employees in the arbitration process, and it must show that Schwitzer breached the CBA. Because employees choose their bargaining representative, and because most collective agreements contain mechanisms for resolving employee grievances, courts should be reluctant to construe as a matter of law collective bargaining agreements when evaluating whether a union has violated its duty of fair" }, { "docid": "22377536", "title": "", "text": "really alleges that the process of collective bargaining has broken down.” United Steelworkers v. Crown Cork & Seal Co., 32 F.3d 53, 58 (3d Cir.1994). This type of claim is subject to a six-month statute of limitations period. DelCostello, 462 U.S. at 172, 103 S.Ct. 2281. With regard to a section 301 claim, the limitations period commences “when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation.” Vadino v. A. Valey Engineers, 903 F.2d 253, 260 (3d Cir.1990). The limitations period for a fair representation claim begins to run when the plaintiff knows or reasonably should have known of the acts contributing to the union’s wrongdoing in failing to adequately represent the member’s interests. Miklavic v. USAir, Inc., 21 F.3d 551, 556 (3d Cir.1994). Because it is undisputed that Appellant did not file his hybrid claim within six months of his retirement, Appellant has no choice but to argue that the limitations period should be tolled. NRLCA urges us to adopt an approach where the statute of limitations period may be tolled if (1) the plaintiff is fraudulently induced to delay filing his suit, see Simmons v. Howard Univ., 157 F.3d 914, 917 (D.C.Cir.1998), or (2) in good faith, the plaintiff attempts to exhaust the applicable grievance procedures, see Lucas v. Moun tain States Tel. & Tel., 909 F.2d 419, 421-22 (10th Cir.1990). We need not reach the question of tolling the statute of limitations period, however. In hybrid section 301 claims, a plaintiff “must prove that the employer breached the collective bargaining agreement in order to prevail on the breach of duty of fair representation claim against the union and vice versa.” Felice v. Sever, 985 F.2d 1221, 1226 (3d Cir.1993). The Supreme Court instructs that, where a collective bargaining agreement establishes a grievance procedure, an employee must at least attempt to exhaust such a process. Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). An employer cannot be held liable for breach of a collective bargaining agreement unless it can be shown that" }, { "docid": "16608862", "title": "", "text": "cause of action as a “hybrid suit,” encompassing two separate but interrelated claims. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476 (1983). The suit against the Postal Service is predicated on an alleged breach of the collective bargaining agreement, thereby falling under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). See id. at 164,103 S.Ct. at 2290-91. The duty of fair representation claim against NALC arises implicitly under the National Labor Relations Act’s statutory scheme. See id. at 164 & n. 14, 103 S.Ct. at 2290 & n. 14 (citing Vaca v. Sipes, 386 U.S. 171,177, 87 S.Ct. 903, 909-10, 17 L.Ed.2d 842 (1967)). Because the two claims in a hybrid suit are “inextricably interdependent,” a plaintiff may not prevail against either his employer or his union unless he establishes that his discharge contravened the collective bargaining agreement and that his union breached its duty of fair representation. Id. at 164-65, 103 S.Ct. at 2290-91; see also Edwards v. International Union, United Plant Guard Workers, 46 F.3d 1047, 1051-52 (10th Cir.) (discussing the nature of hybrid suits), cert, denied, — U.S. -, 116 S.Ct. 60, 133 L.Ed.2d 23 (1995). The court need only discuss the breach of duty of fair representation claim levelled against NALC. A union breaches its duty of fair representation only if its conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. Vaca, 386 U.S. at 190, 87 S.Ct. at 916-17. The Supreme Court has explained that “a union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness’ as to be irrational.” Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 1130, 113 L.Ed.2d 51 (1991) (citation omitted). A union’s conduct is discriminatory if it engages in actions based on prejudice, animus, or “invidious” distinctions “such as race or other constitutionally protected categories.” Considine v. Newspaper Agency Corp., 43" }, { "docid": "22235437", "title": "", "text": "Cir.1996). Mixed questions of law and fact are likewise reviewed de novo. See Scribner v. Summers, 84 F.3d 554, 557 (2d Cir.1996). Under the clearly erroneous standard, “there is a strong presumption in favor of a trial court’s findings of fact if supported by substantial evidence. We will not upset a factual finding unless we are left with the definite and firm conviction that a mistake has been committed.” Travellers Int’l, A.G. v. Trans World Airlines, Inc., 41 F.3d 1570, 1574 (2d Cir.1994) (internal citations and-quotation marks omitted). II. Elements of a Hybrid § 301/DFR Claim To establish a hybrid § 301/DFR claim, a plaintiff must prove both (1) that the employer breached a collective bargaining agreement and (2) that the union breached its duty of fair representation vis-a-vis the union members. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). The plaintiff may sue the union or the employer, or both, but must allege violations on the part of both. See id. at 165,103 S.Ct. 2281. A claim for breach of the duty of fan-representation consists of two elements. First, “a union breaches the duty of fair representation when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith.” Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998) (citing Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); see also Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991)). “[A] union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness,’ as to be irrational.” Id. (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048 (1953)). “This ‘wide range of reasonableness’ gives the union room to make discretionary decisions and choices, even if those judgments are ultimately wrong.” Marquez, 525 U.S. at 45-16," }, { "docid": "1888033", "title": "", "text": "was formally withdrawn by UAW. Clark left Ford in February 1996 on medical leave and has not filed any grievances nor made any health and safety complaints subsequent to that time. Clark was not included as a named plaintiff to this action until January 1997. II. DISCUSSION In this action the class seeks to pursue a hybrid claim under Section 801 against Ford for breach of the CBA and against UAW for breach of the duty of fair representation. Although the contractual remedies under a collective bargaining agreement between the employer and union ordinarily are exclusive, if the union has sole power under the contract to utilize the higher stages of a grievance procedure and wrongfully refuses to process a grievance, the employee may bring a hybrid action under Section 301. Vaca v. Sipes, 386 U.S. 171, 184-85, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). In order to prevail against either the employer or union, the employee must prove both that the union breached its duty of fair representation and that the employer breached the collective bargaining agreement. Id. at 186-87, 87 S.Ct. 903. Such an action is governed by the six-month statute of limitations set forth by the Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In DelCostello, the Court reasoned that a hybrid Section 301 fair representation claim resembled a claim for an unfair labor practice under the National Labor Relations Act (NLRA), and imposed a six-month limitations period similar to the limitation period found in section 10(b) of the NLRA. Id. at 169-70, 172, 103 S.Ct. 2281. The statute of limitations begins running when the employee “should reasonably have known of the union’s alleged breach.” Evans v. Northwest Airlines, Inc., 29 F.3d 438, 441 (8th Cir.1994). The class cannot maintain an action against UAW for breach of the duty of fair representation because the action was not filed within the six-month statute of limitations. At the very latest, Scott knew that UAW was not going to pursue the grievance when he filed charges against the union’s" }, { "docid": "17961828", "title": "", "text": "v. National Grange Mut. Ins. Co., 93 F.3d 31, 34 (1st Cir.1996); and Rodríguez Rodríguez v. Dr. Wallace A. Colberg, 92 J.T.S. 102 (1992). There is, therefore, preclusion as to the claim of overtime under local law because the claim for overtime “could have been raised” in the first complaint (93-6123). The instant case as a second complaint seeking sick leave and overtime under local law is therefore barred against Sea Land Service, Inc. under the doctrine of res judi-cata (claim preclusion) using state or local principles except as to the claim that “the union and the defendant did not bring any attention to his complaint ... both acted superficially and doubted as to plaintiffs rights.” As to this claim the Court agrees with defendant Sea Land Service, Inc.’s contention that this cause of action is in the nature of a hybrid breach of contract duty of fair representation under the cases of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); and Hines v. Anchor Motor Freight Inc., 424 U.S. 554, 570-71, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 “a plaintiff must prove both that the employer broke the collective bargaining agreement and that the Union breached its duty of fair representation in order to recover against either the employer or the union.” Chaparro-Febus v. Local 1575, 983 F.2d 325, 330 (1st Cir.1992). Hybrid causes of action under § 301 of the Labor Management Relations Act have the limitations period of six months of Section 10(b) of the Act, 29 U.S.C.S. 160(b). DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Constructive knowledge triggers the time period, Graves v. Smith’s Transfer Corp., 736 F.2d 819, 820 (1st Cir.1984). The pertinent facts are as follows: (1) The local court dismissed the first complaint on April 1, 1993 and notified the same on April 2,1993. (2) On May 21, 1993 Plaintiff Medina" }, { "docid": "15131523", "title": "", "text": "trial, and that the district court improperly resolved reasonable inferences from these facts in favor of the union and the Employers rather than in his favor. He specifically alleges that the union breached its duty of fair representation in its misrepresentations to CSJAC, in its negotiation of the endtail provision, and in its presentation of Williams’s grievance. Williams also claims that the district court improperly dismissed his claims that Complete and TSI were part of a single employer, and that their agreements with the union violated NMATA. II. ANALYSIS A. Standard of review We review de novo the district court’s grant of summary judgment. See Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997). Summary judgment is appropriate when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. See 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 non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial is presented when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505. B. Breach of the union’s duty of fair representation 1. Duty of fair representation As stated by Justice Byron White in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the leading ease in this area of the law, a union’s duty of fair representation includes “a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” The duty extends to all of the union’s represented" }, { "docid": "22377537", "title": "", "text": "statute of limitations period may be tolled if (1) the plaintiff is fraudulently induced to delay filing his suit, see Simmons v. Howard Univ., 157 F.3d 914, 917 (D.C.Cir.1998), or (2) in good faith, the plaintiff attempts to exhaust the applicable grievance procedures, see Lucas v. Moun tain States Tel. & Tel., 909 F.2d 419, 421-22 (10th Cir.1990). We need not reach the question of tolling the statute of limitations period, however. In hybrid section 301 claims, a plaintiff “must prove that the employer breached the collective bargaining agreement in order to prevail on the breach of duty of fair representation claim against the union and vice versa.” Felice v. Sever, 985 F.2d 1221, 1226 (3d Cir.1993). The Supreme Court instructs that, where a collective bargaining agreement establishes a grievance procedure, an employee must at least attempt to exhaust such a process. Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). An employer cannot be held liable for breach of a collective bargaining agreement unless it can be shown that the employee unsuccessfully sought relief through the union grievance procedure. Id. It is undisputed that Article 15 of the collective bargaining agreement between USPS and NRLCA establishes a grievance procedure. Therefore, the question before us is whether or not Appellant diligently attempted to utilize the established grievance process. As the District Court noted, Appellant admitted that he did not file a grievance concerning his March 10,1998, Notice of Intent to Terminate. Joint Appendix at 570. At most, Appellant claims to have initiated the “Step 1 Grievance Procedure” by contacting his union steward and requesting that she accompany him to discuss his grievance with his immediate supervisor. Nowhere does he argue that he declared any intent to grieve or that he signed a Joint Step 1 Grievance Form. By the terms of the agreement, a grievance commences when an employee meets with his supervisor and declares that he has a grievance. From the record, it is apparent that Appellant and his union steward met with his supervisors on March 10, 1998, where he was given the" }, { "docid": "23559802", "title": "", "text": "III. We review a grant of summary judgment de novo, La Preferida, Inc. v. Cerveceria Modelo, S.A. de C. V., 914 F.2d 900, 905 (7th Cir.1990), viewing the record and all reasonable inferences drawn from it in the light most favorable to the party opposing the motion. Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990). We must be 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. See Fed.R.Civ.Pro. 56(c); First Wisconsin Trust Co. v. Schroud, 916 F.2d 394, 398 (7th Cir.1990). Counts II and III presented hybrid § 301/fair representation claims. See DelCostello v. Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983). Count II alleged that the defendants entered into a conspiracy to deprive the plaintiffs of their employment in violation of the federal labor laws. The plaintiffs asserted that Matthews breached its collective bargaining agreement with the plaintiffs by causing the Hillfarm Dairy to close and that the Union breached its duty of fair representation by transferring the plaintiffs’ collective bargaining agreement from Jewel to Matthews, by secreting from them the ownership of Matthews, and by failing to adequately represent them with regard to the conspiracy grievance in the arbitration proceedings. Count III alleged that Jewel breached its collective bargaining agreement with the plaintiffs and its subsequent letter agreement. The count also alleged that the Union breached its duty of fair representation in grieving the plaintiffs’ breach of contract claim. Both Counts II and III sought to overturn the arbitration award. Section 301 provides federal jurisdiction for employees to sue their employer for breach of a collective bargaining agreement and their union for breach of its duty of fair representation. See 29 U.S.C. § 185(a); Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967). As the district court noted, hybrid § 301/ fair representation claims are interdependent: to prevail against either an employer or the Union, the plaintiffs must show that their discharge was contrary to a collective bargaining" }, { "docid": "7249006", "title": "", "text": "plaintiffs in their wrongful termination grievances. Additionally, Jones alleges that Local 41 failed to represent adequately his claims that UPS violated the agreement by routinely cutting his bid route, and by using sleeper teams to haul packages that Jones otherwise would have been responsible to carry. “Section 301 contemplates suits by and against individual employees as well as between unions and employers,” and “encompass[es] those seeking to vindicate ‘uniquely personal’ rights of employees such as wages, hours, overtime pay, and wrongful discharge.” Hines, 424 U.S. at 562, 96 S.Ct. 1048. As the exclusive bargaining agent in the negotiation and administration of a collective bargaining agreement, the union assumes the responsibility and duty of fair representation for all of its members. Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). Section 301 thus permits an action against the union for breach of its duty of fair representation, and an action against the employer for breach of the collective bargaining agreement. A party seeking to recover on a “hybrid” § 301 claim against the • employer must prove both that the employer violated the collective bargaining agreement and that the union breached its duty of fair representation, assuming the employee has exhausted his contractual grievance remedies. Vaca v. Sipes, 386 U.S. 171,186-87, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Waldron v. Boeing Co., 388 F.3d 591, 594 (8th Cir.2004). A union breaches its duty of fair representation only when its conduct toward a member is “arbitrary, discriminatory, or in bad faith,” Vaca, 386 U.S. at 190, 87 S.Ct. 903; Buford v. Runyon, 160 F.3d 1199, 1202 (8th Cir.1998), or so unreasonable as to be “irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 78, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). “Mere negligence, poor judgment, or ineptitude by a union is insufficient to establish a breach of the duty of fair representation.” Buford, 160 F.3d at 1202. We need not decide whether UPS violated the collective bargaining agreement by terminating Jones or Clark out of a retaliatory or discriminatory motive, because plaintiffs on this record" } ]

[ { "docid": "22041088", "title": "", "text": "is presumed” from failure to return rented property within 20 days of demand. These mandatory directions directly foreclosed independent jury consideration of whether the facts proved established certain elements of the offenses with which Carella was charged. The instructions also relieved the State of its burden of proof articulated in Winship, namely, proving by evidence every essential element of Carella’s crime beyond a reasonable doubt. The two instructions violated the Fourteenth Amendment. The State insists that the error was in any event harmless. As we have in similar cases, we do not decide that issue here. In Sandstrom v. Montana, supra, at 515, the jury in a murder case was instructed that the “law presumes that a person intends the ordinary consequences of his voluntary acts.” We held that, because the jury might have understood the presumption to be conclusive or as shifting the burden of persuasion, the instruction was constitutional error. There was a claim of harmless error, however, and even though the jury might have considered the presumption to be conclusive, we remanded for the state court to consider the issue if it so chose. In Rose v. Clark, 478 U. S. 570 (1986), we again said that a Sandstrom error is subject to the harmless-error rule. “Nor is Sandstrom error equivalent to a directed verdict for the State. When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt. Connecticut v. Johnson, 460 U. S. 73, 96-97 (1983) (Powell, J., dissenting). In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury. ... In that event the erroneous instruction is simply superfluous: the jury has found, in Winship’s words, ‘every fact necessary’ to establish every element of the offense beyond a reasonable doubt.” Rose, supra, at 580-581 (footnote and citations omitted). We also observed that although we have the authority to make the harmless-error determination ourselves, we do not ordinarily do so. Hence, we" } ]

[ { "docid": "11010823", "title": "", "text": "may operate. Edmonds and the panel are correct in a sense. Just as the Sixth Amendment precludes the court from affirming on the ground that the jury would have found the defendant guilty beyond a reasonable doubt had it been properly instructed, we cannot affirm a non-unanimous verdict simply because the evidence is so overwhelming that the jury surely would have been unanimous had it been properly instructed on unanimity. Affirmance here, however, does not require making this speculative leap. Unlike the complete undermining of the verdict that occurred in Sullivan, this ease involves error affecting only one of many findings made by the jury. The Supreme Court has held that similar errors — jury instructions that erroneously contain a mandatory presumption or misdescribe an element of the offense — may be harmless if the remaining unaffected jury findings are “functionally equivalent to finding” the lacking element. Carella v. California, 491 U.S. 263, 271, 109 S.Ct. 2419, 2423-24, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring in judgment); see also Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (instruction containing an erroneous presumption); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (same); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (same); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (instruction misstating an element of the offense). Even though such errors impermissibly deprive the jury of its fact-finding function, the resulting verdicts may be salvageable. Specifically, if other facts found by the jury are “so closely related” to the fact tainted by erroneous instructions “that no rational jury could find those facts without also finding [the former] fact, making those findings is functionally equivalent to finding” the lacking element. Carella, 491 U.S. at 271, 109 S.Ct. at 2423-24 (Scalia, J., concurring in the judgment); see also Rose v. Clark, 478 U.S. 570, 580-81, 106 S.Ct. 3101, 3107-08, 92 L.Ed.2d 460 (1986) (“When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond" }, { "docid": "548845", "title": "", "text": "an element of the offense for which the government should have shouldered the burden of persuasion. A permissive presumption allows but does not require the jury to infer the elemental fact upon proof of the basic facts. It does not relieve the government of its burden of persuasion because the government still must convince the jury that the suggested conclusion should be inferred based on the predicate facts proved. The use of a permissive presumption is constitutional so long as there is a “rational connection” between the predicate and presumed facts, McInerney v. Berman, 621 F.2d 20, 23 (1st Cir.1980). See Franklin, 471 U.S. at 314-315, 105 S.Ct. at 1971-72, citing Ulster County Court, 442 U.S. at 157-63, 99 S.Ct. at 2224-28. Second, if we conclude that the specific language challenged by petitioner set up a mandatory presumption, we then must consider whether other parts of the instruction explained “the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption,” Franklin, 471 U.S. at 315, 105 S.Ct. at 1971, citing Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Finally, we must consider whether the instruction, even if reasonably understood to relieve the government of its burden on an element of the offense, nevertheless was harmless beyond a reasonable doubt. Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (per curiam); Rose v. Clark, 478 U.S. 570, 580, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 (1986); Quigley v. Vose, 834 F.2d 14, 16 (1st Cir.1987). A. In Sandstrom, the Supreme Court unanimously held unconstitutional a jury instruction given at the defendant’s murder trial that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts,” concluding that this language created a mandatory presumption of intent upon proof of other elements of the offense. The justices acknowledged that “some jurors may have interpreted the challenged instruction as permissive, or, if mandatory, as requiring only that the defendant come forward with 'some’ evidence in rebuttal,” 442 U.S." }, { "docid": "22668826", "title": "", "text": "jury found a “clear connection” between the prior offénses and the charged offense, “it may be logically concluded that if the Defendant committed other offenses, he also committed the crime charged in this case.” The Court finds it “likely” that the jury understood the instruction to mean that “if it found a ‘clear connection’ between the prior injuries and the instant injuries, and if it found that McGuire had committed the prior injuries, then it could use that fact in determining that McGuire committed the crime charged.” Ante, at 75. In my view, there is a reasonable likelihood that the jury did not understand this single sentence to establish a two-step process. The jury was instructed to “consider” the evidence that McGuire had “committed acts similar” to the crime charged and to “determin[e]” whether there was a “clear connection” between these prior acts and the ones that resulted in Tori’s death. App. 40, 41. The trial court did not instruct the jury that it must first “determine” whether McGuire had in fact inflicted the prior injuries. The part of the instruction relied upon by the Court — “it may be logically concluded that if the defendant committed other offenses, he also committed the crime charged in this case” — does not make clear that it is the jury’s role to ascertain whether McGuire was the perpetrator of the prior abuse. Rather, coming as it does in the middle of what appears to be a conclusion of law, it is reasonably likely that the jury understood that such a determination had already been made and that its role was merely to determine if there was a “clear connection” between Tori’s prior injuries and the injuries that killed her. Although we “have defined the category of infractions that violate ‘fundamental fairness’ very narrowly,” Dowling v. United States, 493 U. S. 342, 352 (1990), it is well established that the fundamental fairness guarantee of the Due Process Clause requires the prosecution to prove beyond a reasonable doubt every element of the offense. In re Winship, 397 U. S. 358, 364 (1970); McMillan v." }, { "docid": "2195656", "title": "", "text": "Hyman, — U.S. -, 106 S.Ct. 3327, 92 L.Ed.2d 734 (1986). III The Supreme Court’s remand requires us to reconsider in light of Rose our ruling that an erroneous jury instruction does not entitle Hyman to a new trial on the issue of guilt. In Rose, the Court held that a jury instruction which creates an unconstitutional presumption of malice should be scrutinized under a harmless error test. 106 S.Ct. at 3105. The trial judge instructed the jury, in the charge quoted in Part I of this opinion, that malice is “presumed from the willful, the deliberate, the intentional doing of an unlawful act without justification or excuse” or from “the use of a deadly weapon.” The court also noted that the presumption of malice could be rebutted and that the state must prove malice beyond a reasonable doubt. The jury reasonably may have believed that the judge’s instructions, taken as a whole, relieved the state of its affirmative burden to prove the element of malice. In Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the Court held that a jury instruction which creates a presumption of malice that shifts the burden of proof on intent to the defendant is a denial of due process. 442 U.S. at 523-24, 99 S.Ct. at 2459. In Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the Court held that a mandatory but rebuttable presumption of an element of the offense, while it may be less burdensome to the defendant than a conclusive presumption, “is no less unconstitutional.” 471 U.S. at 317, 105 S.Ct. at 1973. See also Sandstrom, 442 U.S. at 524, 99 S.Ct. at 2459. In deciding whether an erroneous malice instruction was harmless error, Rose requires an examination of the record as a whole to determine whether the evidence of intent is so dispositive that the “ ‘reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.’ ” 106 S.Ct. at 3109. In Thomas v. Kemp, 800 F.2d 1024 (11th" }, { "docid": "22343643", "title": "", "text": "in light of the decision last term in Rose v. Clark, 478 U. S. 570 (1986). See ante, at 503-504, n. 7. I emphatically disagree. In Rose v. Clark the Court held that harmless-error analysis is applicable to instructions that informed the jury of the proper elements of the crime and the proper standard of proof, but impermissibly gave the jury the option of finding one of the elements through a presumption, in violation of Sandstrom v. Montana, 442 U. S. 510 (1979), and Francis v. Franklin, 471 U. S. 307 (1985). In holding harmless-error analysis applicable, the Court explained that because the presumption in question “‘does not remove the issue of intent from the jury’s consideration, it is distinguishable from other instructional errors that prevent a jury from considering an issue.”’ 478 U. S., at 580, n. 8 (emphasis added), quoting Connecticut v. Johnson, 460 U. S. 73, 95, n. 3 (1983) (Powell, J., dissenting). The Court reasoned that when the evidence is overwhelming on intent, the instruction allowing the jury to use a presumption can be deemed “simply superfluous,” 478 U. S., at 581, for as Justice Powell had earlier stated, in some cases the evidence may be so “dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption. ” Connecticut v. Johnson, 460 U. S., at 97, n. 5 (dissenting opinion). This case is, of course, far different. No court could ever determine that the instructions on the element were superfluous, since the error in the instructions went to the ultimate fact that the juries were required to find. Rose v. Clark did not modify the precedents requiring that a jury find all of the elements of a crime under the proper standard, any more than it modified the Sixth Amendment’s provision that “[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . trial by an impartial jury.” HH H — I Aside from its error in remanding convictions which must clearly be reversed, the Court" }, { "docid": "22668828", "title": "", "text": "Pennsylvania, 477 U. S. 79, 85 (1986). This constitutional principle “prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” Francis v. Franklin, 471 U. S. 307, 313 (1985); Sandstrom v. Montana, 442 U. S. 510 (1979). Thus, we have held that mandatory presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of the offense. Patterson v. New York, 432 U. S. 197, 215 (1977); Sandstrom, supra, at 520-524. By contrast, a permissive inference is not a violation of due process because the State still has the burden of persuading the jury that the suggested conclusion should be inferred based on the predicate facts proved. Ulster County Court v. Allen, 442 U. S. 140, 157-163 (1979). In this case, the instruction perhaps was intended to posit a permissive inference that whoever had inflicted Tori’s prior injuries was likely to have inflicted the injuries that caused her death. But the trial court did not make clear that the State first had to prove the predicate facts from which the inference was to be drawn. Furthermore, the wording of the instruction is such that the jury may well have assumed that it had no choice but to “logically conclud[e]” that McGuire was the murderer once it found a “clear connection” between the prior injuries and the fatal ones. Because I cannot say with any confidence that the instruction allowed a mere permissive inference drawing from proven facts, I think the instruction should be treated as a mandatory presumption that may have relieved the State of its burden of proving the identity of Tori’s killer beyond a reasonable doubt. Had the instruction been clearly worded, I would agree with the Court that there is sufficient circumstantial evidence in the record to support a finding that McGuire was the perpetrator of the prior injuries. After all, as the Court points out, “[t]he proof of battered child syndrome itself narrowed" }, { "docid": "22668830", "title": "", "text": "the group of possible perpetrators to McGuire and his wife, because they were the only two people regularly caring for Tori.” Ante, at 74. In this case, however, it is important to remember that the other person regularly caring for Tori — Daisy McGuire — took the stand and testified, under a grant of immunity, that she was the one who inflicted the fatal injuries on the night of July 7, 1981. McGuire’s jury deliberated for three days before returning a verdict of guilty. Any evaluation of the jury instruction must be conducted against the background of Daisy McGuire’s surprise testimony and the dilemma it so clearly posed for the jury. In my view, the jury instruction on similar acts was so “ambiguous,” ante, at 72, that there was a reasonable likelihood that the jury was encouraged to make assumptions and conclusions about the identity of Tori’s murderer that relieved the State of having to prove that element of the offense beyond a reasonable doubt. In cases where the Court has found that jury instructions included mandatory presumptions inconsistent with the guarantees of the Due Process Clause, the Court has remanded to determine whether the erroneous instruction was harmless, which is the course that should be followed here. See, e. g., Sandstrom, supra, at 526-527; Rose v. Clark, 478 U. S. 570, 584 (1986); Carella v. California, 491 U. S. 263, 266-267 (1989) (per curiam). Although not dispositive, it is worth noting that California’s model jury instructions on “evidence of other crimes” has since been revised to eliminate the phrase “so that it may be logically concluded.” See 1 California Jury Instructions, Criminal 2.50 (5th ed. 1987)." }, { "docid": "22668823", "title": "", "text": "likelihood that the jury misapplied the prior acts instruction. The trial court instructed the jury that evidence of Tori’s prior injuries had been admitted to show that McGuire had committed offenses similar to that for which he was on trial, and that, if the jury found a “clear connection” between the prior offenses and the charged offense, “it may be logically concluded that if the Defendant committed other offenses, he also committed the crime charged in this case.” App. 41. In my view, the instruction encouraged the jury to assume that McGuire had inflicted the prior injuries and then directed the jury to conclude that the prior abuser was the murderer. Because the instruction may have relieved the State of its burden of proving the identity of Tori’s murderer beyond a reasonable doubt, I would hold that the instruction was error and remand to the Court of Appeals for a determination of whether that error was harmless. The fact that a 6-month-old child was repeatedly beaten in the course of her short life is so horrifying that a trial court should take special care to inform the jury as to the significance of that evidence. As the Court notes, the demonstration of battered child syndrome is relevant because it “ ‘indicates that a child found with [serious, repeated injuries] has not suffered those injuries by accidental means,’ ” ante, at 68 (quoting People v. Jackson, 18 Cal. App. 3d 504, 507; 95 Cal. Rptr. 919, 921 (1971)). L therefore agree that proof of Tori’s battered child status, although “not linked by any direct evidence to McGuire,” was properly admitted because “the evidence demonstrated that Tori’s death was the result of an intentional act by someone, and not an accident.” Ante, at 69. Precisely because the relevance of battered child syndrome is not tied to the identity of the abuser, however, I believe that a jury instruction clarifying the limited probative value of that evidence was required. Instead of an instruction limiting the use of evidence of Tori’s prior injuries, the trial judge gave an instruction limiting the use of evidence" }, { "docid": "22668827", "title": "", "text": "injuries. The part of the instruction relied upon by the Court — “it may be logically concluded that if the defendant committed other offenses, he also committed the crime charged in this case” — does not make clear that it is the jury’s role to ascertain whether McGuire was the perpetrator of the prior abuse. Rather, coming as it does in the middle of what appears to be a conclusion of law, it is reasonably likely that the jury understood that such a determination had already been made and that its role was merely to determine if there was a “clear connection” between Tori’s prior injuries and the injuries that killed her. Although we “have defined the category of infractions that violate ‘fundamental fairness’ very narrowly,” Dowling v. United States, 493 U. S. 342, 352 (1990), it is well established that the fundamental fairness guarantee of the Due Process Clause requires the prosecution to prove beyond a reasonable doubt every element of the offense. In re Winship, 397 U. S. 358, 364 (1970); McMillan v. Pennsylvania, 477 U. S. 79, 85 (1986). This constitutional principle “prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” Francis v. Franklin, 471 U. S. 307, 313 (1985); Sandstrom v. Montana, 442 U. S. 510 (1979). Thus, we have held that mandatory presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of the offense. Patterson v. New York, 432 U. S. 197, 215 (1977); Sandstrom, supra, at 520-524. By contrast, a permissive inference is not a violation of due process because the State still has the burden of persuading the jury that the suggested conclusion should be inferred based on the predicate facts proved. Ulster County Court v. Allen, 442 U. S. 140, 157-163 (1979). In this case, the instruction perhaps was intended to posit a permissive inference that whoever had inflicted Tori’s prior injuries was likely to have" }, { "docid": "22668822", "title": "", "text": "at 379-380 (considering and rejecting standards that required examination of either what a reasonable juror “could” have done or “would” have done). So that we may once again speak with one voice on this issue, we now disapprove the standard of review language in Cage and Yates, and reaffirm the standard set out in Boyde. Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of “prior crimes” evidence to show propensity to commit a charged crime. Justice O’Connor, with whom Justice Stevens joins, concurring in part and dissenting in part. I agree with the Court that the evidence of battered child syndrome was relevant. The State had to prove that Mark McGuire intended to kill his daughter, and the evidence that Tori was a battered child was probative of causation and intent. I therefore join Part I of the Court's opinion. I do not join Part II of the opinion because I think there is a reasonable likelihood that the jury misapplied the prior acts instruction. The trial court instructed the jury that evidence of Tori’s prior injuries had been admitted to show that McGuire had committed offenses similar to that for which he was on trial, and that, if the jury found a “clear connection” between the prior offenses and the charged offense, “it may be logically concluded that if the Defendant committed other offenses, he also committed the crime charged in this case.” App. 41. In my view, the instruction encouraged the jury to assume that McGuire had inflicted the prior injuries and then directed the jury to conclude that the prior abuser was the murderer. Because the instruction may have relieved the State of its burden of proving the identity of Tori’s murderer beyond a reasonable doubt, I would hold that the instruction was error and remand to the Court of Appeals for a determination of whether that error was harmless. The fact that a 6-month-old child was repeatedly beaten in the course of her short life is so" }, { "docid": "22537072", "title": "", "text": "this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee. See Rose v. Clark, 478 U. S. 570, 578 (1986); id., at 593 (Blackmun, J., dissenting); Pope v. Illinois, 481 U. S. 497, 509-510 (1987) (Stevens, J., dissenting). Once the proper role of an appellate court engaged in the Chapman inquiry is understood, the illogic of harmless-error review in the present case becomes evident. Since, for the reasons described above, there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt — not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. See Yates, supra, at 413-414 (Scalia, J., concurring in part and concurring in judgment). The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty. See Bollenbach v. United States, 326 U. S. 607, 614 (1946). Insofar as the possibility of harmless-error review is concerned, the jury-instruction error in this case is quite different from the jury-instruction error of erecting a presumption regarding an element of the offense. A mandatory presumption — for example, the presumption that a person intends the ordinary consequences of his voluntary acts — violates the Fourteenth Amendment, because it may relieve the State of its burden of proving all elements of the offense. Sandstrom v. Montana, 442 U. S. 510 (1979);" }, { "docid": "22537081", "title": "", "text": "course, a jury does not make explicit factual findings; rather, it simply renders a general verdict on the question of guilt or innocence. Thus, although it may be possible to conclude from the jury’s verdict that it has found a predicate fact (or facts), the reviewing court is usually left only with the record developed at trial to determine whether it is possible to say beyond a reasonable doubt that the error did not contribute to the jury’s verdict. Moreover, any time an appellate court conducts harmless-error review it necessarily engages in some speculation as to the jury’s decisionmaking process; for in the end no judge can know for certain what factors led to the jury’s verdict. Cf. Pope v. Illinois, 481 U. S. 497, 503, n. 6 (1987). Yet harmless-error review has become an integral component of our criminal justice system. See Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986); Chapman v. California, 386 U. S. 18, 22 (1967). Despite these lingering doubts, I accept the Court’s conclusion that a constitutionally deficient reasonable-doubt instruction is a breed apart from the many other instructional errors that we have held are amenable to harmless-error analysis. See, e.g., Carella v. California, 491 U. S. 263 (1989) (per curiam) (instruction containing erroneous conclusive presumption); Pope v. Illinois, supra (instruction misstating an element of the offense); Rose v. Clark, supra (instruction containing erroneous burden-shifting presump tion). A constitutionally deficient reasonable-doubt instruction will always result in the absence of “beyond a reasonable doubt” jury findings. That being the case, I agree that harmless-error analysis cannot be applied in the case of a defective reasonable-doubt instruction consistent with the Sixth Amendment's jury-trial guarantee. I join the Court’s opinion." }, { "docid": "4430018", "title": "", "text": "Petitioner also claims that the jury was instructed to infer all the acts of the petitioner’s alleged coconspirator, Solomon, to the petitioner: Now it is contended by the State that the defendant committed the crime charged in this indictment when he, together with the co-defendant named in this indictment conspired to commit the crime of armed robbery and that the murder of the person named in this indictment was an incidental probable consequence of the commission of the armed robbery agreed upon by them. (T. 806). Petitioner argues that the combination of these charges permitted petitioner’s conviction for malice murder without requiring the prosecution to shoulder its burden of proof beyond a reasonable doubt on the issues of malice, intent and even murder itself. The court finds that the above-quoted instruction on malice was clearly impermissibly burden-shifting under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (jury instruction that “the law presumes a person intends the ordinary consequences of his voluntary acts” violates Fourteenth Amendment due process rights by creating a mandatory presumption which unconstitutionally shifts burden of proof to defendant). See also Drake v. Kemp, 762 F.2d 1449, 1452-53 (11th Cir.1985) (en banc), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 738 (1986) (jury instruction that “the acts of a person of sound mind and discretion are presumed to be the products of a person’s will and a person of sound mind and discretion is presumed to intend the natural and probable consequences of his act, but both of these presumptions may be rebutted” is impermissible burden-shifting instruction under Sandstrom). Determining that the trial court’s instruction was unconstitutionally burden-shifting does not end the analysis, however. A violation of Sandstrom may be harmless error. Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (harmless error analysis applies to Sandstrom violations); Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 3119-20, n. 5, 97 L.Ed.2d 638 (1987) (Sandstrom violation harmless when evidence so dispositive of intent that it can be said beyond a reasonable doubt that jury would have found" }, { "docid": "22668829", "title": "", "text": "inflicted the injuries that caused her death. But the trial court did not make clear that the State first had to prove the predicate facts from which the inference was to be drawn. Furthermore, the wording of the instruction is such that the jury may well have assumed that it had no choice but to “logically conclud[e]” that McGuire was the murderer once it found a “clear connection” between the prior injuries and the fatal ones. Because I cannot say with any confidence that the instruction allowed a mere permissive inference drawing from proven facts, I think the instruction should be treated as a mandatory presumption that may have relieved the State of its burden of proving the identity of Tori’s killer beyond a reasonable doubt. Had the instruction been clearly worded, I would agree with the Court that there is sufficient circumstantial evidence in the record to support a finding that McGuire was the perpetrator of the prior injuries. After all, as the Court points out, “[t]he proof of battered child syndrome itself narrowed the group of possible perpetrators to McGuire and his wife, because they were the only two people regularly caring for Tori.” Ante, at 74. In this case, however, it is important to remember that the other person regularly caring for Tori — Daisy McGuire — took the stand and testified, under a grant of immunity, that she was the one who inflicted the fatal injuries on the night of July 7, 1981. McGuire’s jury deliberated for three days before returning a verdict of guilty. Any evaluation of the jury instruction must be conducted against the background of Daisy McGuire’s surprise testimony and the dilemma it so clearly posed for the jury. In my view, the jury instruction on similar acts was so “ambiguous,” ante, at 72, that there was a reasonable likelihood that the jury was encouraged to make assumptions and conclusions about the identity of Tori’s murderer that relieved the State of having to prove that element of the offense beyond a reasonable doubt. In cases where the Court has found that jury instructions" }, { "docid": "22537078", "title": "", "text": "decision in Cage v. Louisiana, 498 U. S. 39 (1990) (per curiam), amounts to structural error, and thus cannot be harmless regardless of how overwhelming the evidence of Sullivan’s guilt. See ante, at 281-282. It grounds this conclusion in its determination that harmless-error analysis cannot be conducted with respect to error of this sort consistent with the Sixth Amendment right to a jury trial. We of course have long since rejected the argument that, as a general matter, the Sixth Amendment prohibits the application of harmless-error analysis in determin ing whether constitutional error had a prejudicial impact on the outcome of a case. See, e. g., Rose, supra, at 582, n. 11. The Court concludes that the situation at hand is fundamentally different, though, because, in the case of a constitutionally deficient reasonable-doubt instruction, “the entire premise of Chapman [harmless-error] review is simply absent.” Ante, at 280. Where the jury views the evidence from the lens of a defective reasonable-doubt instruction, the Court reasons, there can be no factual findings made by the jury beyond a reasonable doubt in which an appellate court can ground its harmless-error analysis. See ante, at 280-281. The Court thus distinguishes our cases in which we have found jury instructions that create an unconstitutional presumption regarding an element of the offense subject to harmless-error review. In Rose v. Clark, supra, for example, we held that harmless-error analysis may be applied in reviewing instructions that violate the principles of Sandstrom v. Montana, 442 U. S. 510 (1979), and Francis v. Franklin, 471 U. S. 307 (1985). The “malice instruction” in Rose shifted the burden of proof on the issue of intent, in violation of due process under our decision in Sandstrom. Because the jury was instructed to presume malice from certain predicate facts, and it was required to find those facts beyond a reasonable doubt, we held that the Sandstrom error was amenable to harmless-error analysis. 478 U. S., at 580. See also Connecticut v. Johnson, 460 U. S. 73, 96-97 (1983) (Powell, J., dissenting). There are many similarities between the instructional error in Rose and" }, { "docid": "15132299", "title": "", "text": "followed our decision in Flowers v. Blackburn and overturned the first degree murder convictions of Robertson's alleged co-perpetrator, David West, on direct appeal on account of a constitutionally erroneous jury instruction on the law of principals that was identical to the instruction given in Robertson's case. See State v. West, 568 So.2d at 1022-24. . In Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the Supreme Court recognized two categories of constitutional violations, \"trial error\" and \"structural defects.\" Trial error occurs \"during the presentation of the case to the jury,\" and is amenable to harmless error analysis because it \"may .. be quantitatively assessed in the context of other evidence pre-seuted in order to determine whether its admission was harmless Id. On the other hand, structural defects \"defy analysis by `harmless error' standards\" and require \"automatic reversal of the conviction\" because they affect \"`the constitution of the trial mechanism' \" and, therefore, \"the entire trial process.\" Brecht v. Abrahamson, 507 U.S. 619, 629, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Fulminante, 499 U.S. at 308-10, 111 S.Ct. 1246). A Sandstrom-type error has been held to be a \"trial error\" to which the harmless error rule applies. See Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (holding harmless error analysis appropriate for jury instruction that erroneously charged jury on the element of malice); California v. Roy, 519 U.S. 2, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (holding that a jury instruction that did not include a statement informing the jury that they must find intent should be reviewed for harmless error). . See also n. 3, supra. .We hold today that the district court erred as a matter of law when it decided to assess the harmlessness of the Sandstrom error in this case under the Chapman “harmless beyond a reasonable doubt\" standard. However, it is worth noting that the erroneously applied Chapman standard is supposed to be more rigorous and less deferential to the state court than the Brecht standard that we reaffirm today. Because the district court" }, { "docid": "23005572", "title": "", "text": "evidence” is not limited to capital cases. In this case, the question is not whether application of the “reasonable likelihood” standard of Boyde is a new rule. It is not. See ante, at 341-342; supra, at 348. Nor is the question whether jury instructions may be so erroneous under state law as to rise to the level of a constitutional violation. It is clear to me that they may. See, e. g., McGuire, 502 U. S., at 72; id., at 78 (O’Connor, J., concurring in part and dissenting in part). The question is whether reasonable jurists could disagree over whether the particular erroneous instruction at issue here — which we assume created a reasonable likelihood that the jury did not consider Taylor’s affirmative defense once it determined the two elements of murder were established — violated the Constitution. Our cases do not provide a clear answer to that question. Due process, of course, requires that the State prove every element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U. S. 358 (1970). This straightforward proposition has spawned a number of corollary rules, among them the rule that the State may not “us[e] evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” Francis v. Franklin, 471 U. S. 307, 313 (1985). Accord, Rose v. Clark, 478 U. S. 570, 580 (1986); Connecticut v. Johnson, 460 U. S., at 84-85 (plurality opinion); Sandstrom, supra, at 521-523. The Court of Appeals extended these cases — which themselves are the “logical extension” of Winship, see Rose, supra, at 580 — one step further. It read them as standing for the proposition that any instruction that leads “the jury to ignore exculpatory evidence in finding the defendant guilty of murder beyond a reasonable doubt” violates due process; it disregarded as meaningless the distinction between elements of the offense and affirmative defenses. 954 F. 2d, at 453. Our opinions in Martin v. Ohio, 480 U. S. 228 (1987), and Patterson v." }, { "docid": "23005571", "title": "", "text": "form the basis for relief, even in a noncapital case. In McGuire, a majority of the Court found that the particular erroneous instruction at issue did not give rise to a constitutional violation, but the very fact that the Court scrutinized the instruction belies any assertion that erroneous instructions can violate due process only in capital cases. We have not held that the Eighth Amendment’s requirement that the jury be allowed to consider and give effect to all relevant mitigating evidence in capital cases, see, e. g., Boyde, supra, applies to noncapital cases. Nevertheless, we have held that other constitutional amendments create “constitutionally relevant evidence” that the jury must be able to consider. See, e. g., Rock v. Arkansas, 483 U. S. 44, 51 (1987) (“The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution”); Delaware v. Van Arsdall, 475 U. S. 673, 678-679 (1986) (Rehnquist, J.) (“[T]he Confrontation Clause guarantees an opportunity for effective cross-examination” (internal quotation marks omitted)). The category of “constitutionally relevant evidence” is not limited to capital cases. In this case, the question is not whether application of the “reasonable likelihood” standard of Boyde is a new rule. It is not. See ante, at 341-342; supra, at 348. Nor is the question whether jury instructions may be so erroneous under state law as to rise to the level of a constitutional violation. It is clear to me that they may. See, e. g., McGuire, 502 U. S., at 72; id., at 78 (O’Connor, J., concurring in part and dissenting in part). The question is whether reasonable jurists could disagree over whether the particular erroneous instruction at issue here — which we assume created a reasonable likelihood that the jury did not consider Taylor’s affirmative defense once it determined the two elements of murder were established — violated the Constitution. Our cases do not provide a clear answer to that question. Due process, of course, requires that the State prove every element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U. S. 358" }, { "docid": "22601514", "title": "", "text": "defining the elements of a criminal offense. See Patterson v. New York, 432 U. S. 197, 210 (1977). Federal and state legislatures may reallocate burdens of proof by labeling elements as affirmative defenses, ibid., or they may convert elements into “sentencing factor[s]” for consideration by the sentencing court, McMillan, supra, at 85-86. The Court today does not resolve what role materiality plays under § 1001. The Court properly acknowledges that other mixed questions of law and fact remain the proper domain of the trial court. Ante, at 520-521. Preliminary questions in a trial regarding the admissibility of evidence, Fed. Rule Evid. 104(a), the competency of witnesses, ibid., the voluntariness of confessions, Crane v. Kentucky, 476 U. S. 683, 688-689 (1986), the legality of searches and seizures, Fed. Rule Crim. Proc. 12(b)(3), and the propriety of venue, see Fed. Rule Crim. Proc. 18, may be decided by the trial court. Finally, the Government has not argued here that the error in this case was either harmless or not plain. Brief for United States 8, n. 5. As to the former, there is a “strong presumption” that a constitutional violation will be subject to harmless-error analysis. See Rose v. Clark, 478 U. S. 570, 579 (1986). Accordingly, “the Court has applied harmless-error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless.” Arizona v. Fulminante, 499 U. S. 279, 306 (1991); cf. id., at 309-310 (listing examples of structural errors). In particular, the Court has subjected jury instructions plagued by constitutional error to harmless-error analysis. See, e. g., Yates v. Evatt, 500 U. S. 391, 402 (1991) (taint of an unconstitutional burden-shifting jury instruction subject to harmless-error analysis); Carella v. California, 491 U. S. 263, 266 (1989) (per curiam) (jury instruction containing an erroneous mandatory presumption subject to harmless-error analysis); Pope v. Illinois, 481 U. S. 497, 502-504 (1987) (jury instruction misstating an element of an offense subject to harmless-error analysis); Rose, supra, at 581-582 (jury instruction containing an erroneous rebuttable presumption subject to harmless-error analysis); but see Sullivan, 508 U. S., at 280-282 (erroneous" }, { "docid": "23005573", "title": "", "text": "(1970). This straightforward proposition has spawned a number of corollary rules, among them the rule that the State may not “us[e] evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” Francis v. Franklin, 471 U. S. 307, 313 (1985). Accord, Rose v. Clark, 478 U. S. 570, 580 (1986); Connecticut v. Johnson, 460 U. S., at 84-85 (plurality opinion); Sandstrom, supra, at 521-523. The Court of Appeals extended these cases — which themselves are the “logical extension” of Winship, see Rose, supra, at 580 — one step further. It read them as standing for the proposition that any instruction that leads “the jury to ignore exculpatory evidence in finding the defendant guilty of murder beyond a reasonable doubt” violates due process; it disregarded as meaningless the distinction between elements of the offense and affirmative defenses. 954 F. 2d, at 453. Our opinions in Martin v. Ohio, 480 U. S. 228 (1987), and Patterson v. New York, 432 U. S. 197 (1977), however, make clear that at least in some circumstances the distinction is not meaningless. In Patterson, we held that the Due Process Clause did not require the State to prove the absence of the affirmative defense of extreme emotional disturbance beyond a reasonable doubt; the State instead could place the burden of proving the defense on the defendant. Id., at 210. We reaffirmed this holding in Martin, supra, and rejected petitioner’s claim that requiring her to prove self-defense by a preponderance of the evidence shifted to petitioner the burden of disproving the elements of the crime. Id., at 233-234. (Although Martin was decided after Taylor’s conviction became final, its holding, like Boyde’s, was not a new rule.) This ease differs from Martin and Patterson in at least two ways. First, Taylor had only the burden of production and not the burden of persuasion; once he produced sufficient evidence for the issue to go to the jury, the State was required to prove the absence of his defense beyond" } ]

[ { "docid": "22655459", "title": "", "text": "case, it is entirely clear that a breach does not cause the guilty plea, when entered, to have been unknowing or involuntary. It is precisely because the plea was knowing and voluntary (and hence valid) that the Government is obligated to uphold its side of the bargain. Moreover, and perhaps more fundamentally, Puckett’s argument confuses the concepts of waiver and forfeiture. Nobody contends that Puckett’s counsel has waived — that is, intentionally relinquished or abandoned, Olano, 507 U. S., at 733 — Puckett’s right to seek relief from the Government’s breach. (If he had, there would be no error at all and plain-error analysis would add nothing.) The objection is rather that Puckett forfeited the claim of error through his counsel’s failure to raise the argument in the District Court. This Court’s precedents requiring that certain waivers be personal, knowing, and voluntary are thus simply irrelevant. Those holdings determine whether error occurred, but say nothing about the proper standard of review when the claim of error is not preserved. The question presented by this case assumes error; only the standard of review is in dispute. Puckett’s second doctrinal attack rests on our decision in Santobello. In that case, the State had promised in a plea deal that it would make no sentencing recommendation, but the prosecutor (apparently unaware of that commitment) asked the state trial court to impose the maximum penalty of one year. Defense counsel immediately objected. 404 U. S., at 259. The trial judge proceeded anyway to impose the 1-year sentence, reassuring Santobello that the prosecutor’s recommendation did not affect his decision. Id., at 259-260. This Court vacated the conviction and remanded the case because “the interests of justice” would thus be best served. Id., at 262. Puckett maintains that if the “interests of justice” required a remand in Santobello even though the breach there was likely harmless, those same interests call for a remand whenever the Government reneges on a plea bargain, forfeiture or not. We do not agree. Whether an error can be found harmless is simply a different question from whether it can be subjected" } ]

[ { "docid": "22269846", "title": "", "text": "OPINION OF THE COURT AMBRO, Circuit Judge. Where, as here, a convicted criminal defendant presents to the District Court a colorable argument for a lower sentence under 18 U.S.C. § 3553(a), and the District Court fails to address that argument, must the defendant then object in order to preserve the argument for appeal? We conclude that, under our precedent, he need not. Accordingly, we review the District Court’s omissions in this case not for plain error, but to determine whether the Court properly exercised its discretion by giving meaningful consideration to the relevant factors. Applying this standard, we find insufficient evidence for us to discern whether the District Court meaningfully considered two of Appellant Eduardo Sevilla’s arguments for a lower sentence. We thus vacate Sevilla’s sentence and remand for re-sentencing. I. Background Sevilla pled guilty to conspiracy to distribute, and to possess with intent to distribute, cocaine base. At sentencing the Government contended that although Sev-illa initially obstructed justice after his arrest, he subsequently provided substantial assistance to the Government, making inappropriate an increase in the offense level under U.S.S.G. § 3C1.1 for obstruction. The Government also moved for a downward departure under U.S.S.G. § 5K1.1 based on Sevilla’s assistance. Both in his sentencing memorandum and at the sentencing hearing, Sevilla raised several grounds for a lower sentence under 18 U.S.C. § 3553(a). For instance, as to his “history and characteris tics,” § 3553(a)(1), Sevilla pointed to his difficult childhood. Sentencing Memorandum on Behalf of Defendant at 4-5, United States v. Sevilla, No. 1:05-CR-00363 (M.D.Pa. Nov. 22, 2006). He further argued that the federal Sentencing Guidelines’ disparate treatment of crack and powder cocaine created a base offense level that did not accurately reflect his culpability. Id. at 7-10. The District Court agreed not to increase the offense level for obstruction. It also decreased the offense level due to acceptance of responsibility and granted the Government’s motion for a downward departure for substantial assistance, though the Court noted it was reluctant to do so given Sevilla’s initially obstructive behavior. The final advisory Guidelines range was 70 to 87 months, and the" }, { "docid": "22180531", "title": "", "text": "States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Gunter, 462 F.3d at 247. Second, a district court must “formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force.” Id. (citation, quotation marks and alterations omitted). Third, a district court “[is] required to exercise [its] discretion by considering the relevant § 3553(a) factors ... in setting the sentence [it imposes] regardless whether it varies from the sentence calculated under the Guidelines.” Id. (internal citation, quotation marks, and alterations omitted). To satisfy step three, the district court must “acknowledge and respond to any properly presented sentencing argument which has colorable legal merit and a factual basis.” United States v. Begin, 696 F.3d 405, 411 (3d Cir.2012). Failure to give “meaningful consideration” to any such argument renders a sentence procedurally unreasonable which, when appealed, generally requires a remand for resen-tencing. Id. (internal citation omitted). This error of failure to give meaningful consideration must be brought to the district court’s attention through an objection. If a defendant fails to preserve the error for appeal by objecting, the authority of the court of appeals to remedy the error is “strictly circumscribed.” Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). However, Rule 52(b) of the Federal Rules of Criminal Procedure provides for limited relief: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” The issue in this appeal is whether, in order to preserve the objection for appeal and to avert plain error review, a defendant must object after the sentence is pronounced to the district court’s failure to meaningfully consider his argument. In Sevilla, we held that “the District Court’s failure to address those issues [when sentence was pronounced] did not require Sevilla to re-raise them to avert plain error review of these omissions.” Sevilla, 541 F.3d at 231. However," }, { "docid": "22180530", "title": "", "text": "was no reply from either party; instead each side summed up its position on sentencing. On completion of the summations, the District Court proceeded to sentence Flores-Mejia to 78 months in prison. Defense counsel did not at that time object to the court’s failure to rule on the request for variance based on the alleged cooperation, nor did she point out the District Court’s failure to explicitly address or give further consideration to that argument. Flores-Mejia appealed, contending that his sentence is procedurally unreasonable because the District Court failed to sufficiently consider his argument that his attempts at cooperation warranted a lower sentence. Based on our decision in Sevilla, a divided panel of this Court agreed. United States v. Flores-Mejia, 531 F.App’x 222 (3d Cir.2013). We then granted en banc review. II. PRESERVING A CLAIM OF PROCEDURAL ERROR FOR APPEAL In United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006), we set forth a three-step framework for sentencing. First, a district court must calculate a defendant’s Guidelines sentence as it would have before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Gunter, 462 F.3d at 247. Second, a district court must “formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force.” Id. (citation, quotation marks and alterations omitted). Third, a district court “[is] required to exercise [its] discretion by considering the relevant § 3553(a) factors ... in setting the sentence [it imposes] regardless whether it varies from the sentence calculated under the Guidelines.” Id. (internal citation, quotation marks, and alterations omitted). To satisfy step three, the district court must “acknowledge and respond to any properly presented sentencing argument which has colorable legal merit and a factual basis.” United States v. Begin, 696 F.3d 405, 411 (3d Cir.2012). Failure to give “meaningful consideration” to any such argument renders a sentence procedurally unreasonable which, when appealed, generally requires a remand for resen-tencing. Id." }, { "docid": "22180527", "title": "", "text": "OPINION ROTH, Circuit Judge: Jose Luis Flores-Mejia appeals the sentence imposed on him for his conviction of the offense of reentry after deportation. His appeal raises the issue of what a defendant must do in order to preserve a challenge to the procedural reasonableness of a sentence. At the sentencing hearing, Flores-Mejia made a mitigation argument, based on his cooperation with the government. Flores-Mejia contends that his initial presentation of this argument is sufficient, without more, to preserve his claim that the District Court committed procedural error by failing, when it pronounced sentence, to give meaningful consideration to this argument. The government counters that Flores-Mejia’s failure to object, at a time when the District Court could have promptly addressed it, did not preserve the issue for appeal and leaves his claim subject to plain error review. We have decided that, to assist the district courts in sentencing, we will develop a new rule which is applicable in those situations in which a party has an objection based upon a procedural error in sentencing but, after that error has become evident, has not stated that objection on the record. We now hold that in such a situation, when a party wishes to take an appeal based on a procedural error at sentencing — such as the court’s failure to meaningfully consider that party’s arguments or to explain one or more aspects of the sentence imposed — that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal. Our panel holding in United States v. Sevilla, 541 F.3d 226 (3d Cir.2008), differs from our holding today and is superseded. I. FACTS Flores-Mejia, a citizen of Mexico, pled guilty to one count of reentry after deportation, in violation of 8 U.S.C. § 1326(a). This illegal reentry was in fact Flores-Mejia’s sixth illegal entry into the United States. Flores-Mejia had an extensive criminal record with 18 prior convictions, including several for repeated assaults on his wife. As his attorney admitted at sentencing, “This man has an atrocious record.” JA103. Based on a" }, { "docid": "22269853", "title": "", "text": "did not object before the district court to its explanation of the sentence under § 3553(c), the court of appeals would “review this claim for plain error,” and concluding that the district court “did not plainly err” in commenting on the § 3553(a) factors). Even assuming those decisions conflict with our later decision in Grier, however, we must follow Grier. As an en banc opinion, Grier is intervening and controlling authority. See Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir.1996) (“Although a panel of this court is bound by, and lacks authority to overrule, a [prece-dential] decision of a prior panel, a panel may reevaluate a precedent in light of intervening authority and amendments to statutes or regulations.” (citation omitted)). Here, Sevilla squarely raised his difficult childhood and the crack/powder disparity, both in his sentencing memorandum and at his sentencing hearing. Under Grier, then, the District Court’s failure to address those issues did not require Sevilla to re-raise them to avert plain error review of these omissions. B. Meaningful Consideration Review “To determine if the [district] court acted reasonably in imposing the resulting sentence, we must first be satis fied the court exercised its discretion by considering the relevant factors.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006). As we explained in Cooper: The record must demonstrate the trial court gave meaningful consideration to the § 3553(a) factors. The court need not discuss every argument made by a litigant if an argument is clearly without merit. Nor must a court discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing.... On the other hand, a rote statement of the § 3553(a) factors should not suffice if at sentencing either the defendant or the prosecution properly raises “a ground of recognized legal merit (provided it has a factual basis)” and the court fails to address it.... On this issue, we disagree with the decision of the Court of Appeals for the Eleventh Circuit in United States v. Scott, [426 F.3d" }, { "docid": "22269850", "title": "", "text": "both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. 462 F.3d 237, 247 (3d Cir.2006) (internal citations, quotation marks, and brackets omitted). As noted above, it is undisputed here that the District Court complied with steps one and two: it calculated the Guidelines range and formally ruled on the Government’s motion for a downward departure under U.S.S.G. § 5K1.1. The parties disagree, however, whether the District Court complied with step three in light of its failure to address some of Sevilla’s arguments for a lower sentence. A. We Review for Meaningful Consideration, Not Plain Error The Government argues that, because Sevilla failed to object to the District Court’s omissions at close of sentencing, we must review those omissions for plain error. See Government’s Br. 2-3. We disagree. Our Court’s en banc decision in United States v. Grier precludes this argument. See 475 F.3d 556 (2007) (en banc). There, the defendant failed to object at sentencing after the District Court’s con-clusory explanation that it “believes that 100 months is reasonable in view of the considerations of [18 U.S.C. §] 3553(a).” Id. at 561 (alteration in original). We nonetheless reviewed, and not for plain error, the District Judge’s conclusory explanation to determine whether she gave meaningful consideration to the relevant factors, because “[a]n objection to the reasonableness of the final sentence will be preserved if, during sentencing proceedings, the defendant properly raised a meritorious factual or legal issue relating to one or more of the factors enumerated in 18 U.S.C. § 3553(a).” Id. at 571 & n. 11. We ultimately concluded the Court’s explanation was insufficient, as it was “devoid of substantive content and offer[ed] little assistance to an appellate tribunal.” Id. at 571. Accordingly, we remanded the case for resentencing. Id." }, { "docid": "22180564", "title": "", "text": "heard argument and allocution from the parties and weighed the relevant § 3553(a) factors before pronouncing sentence, we fail to see how requiring the defendant to then protest the term handed down as unreasonable will further the sentencing process in any meaningful way.”). Finally, the case law cited by the majority in support of their new rule, except for United States v. Vonner, 516 F.3d 382, 391 (6th Cir.2008) (which is addressed below), completely fails to take into account Rule 51’s procedure for preserving an issue for appeal. As a result, these cases do not provide a reasoned analysis supporting the majority’s approach. . Sevilla provided clear guidance in this post-Booker world, the District Court considered all of the arguments raised at sentencing. The Government determined that the information Flores-Mejia had provided did not warrant a departure motion under U.S.S.G. 5K1.1. When the District Judge said \"anything else”, he had already heard from both sides. Therefore, I would affirm the sentence. . This line of reasoning follows the approach developed by Judge Sutton’s majority opinion in Vonner, which (unsurprisingly) also pays little homage to the text of Rule 51. Vonner, 516 F.3d at 391. The opinion there acknowledges Rule 51. Id. at 391. But the court then supports its application of plain error review of the district court's failure to address the four grounds Vonner specifically raised for a downward variance by positing a hypothetical where the mistake had never been presented to the district court. Id. at 392. The hypothetical, however, lends no support because it is factually distinguishable from what actually occurred in the case. . In Puckett v. United States, the Supreme Court instructed that a party cannot \"remain[] silent” and \"sandbag” a court by failing to object and avert plain error review. 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Unlike Puckett, where the defendant never raised the issue at all in the district court, when a party raises his argument in writing prior to sentencing and orally advocates for particular action at the sentencing hearing, it is inaccurate to contend that the" }, { "docid": "21152192", "title": "", "text": "facially incompatible, they can be best understood by construing section (a) to address concerns regarding a confessor’s free will and section (c) to address concerns regarding delay in arraignment. Such a construction is most consistent with the legislative history....”). Third, there is no necessary correlation between the Government’s reasons for a presentment delay and the voluntariness of a confession. Alvarez-Sanchez, 975 F.2d at 1400 (“The reasons for the delay— whether the delay was necessary or unnecessary — have no bearing, of course, on the confessor’s state of mind.”); Perez, 733 F.2d at 1031 (“[T]he government’s excuses for the delay have no logical or legal relevance to the defendant’s voluntariness.”). Our dissenting colleague cogently argues that the Second, Ninth, and D.C. Circuit Courts have the better of the argument regarding the proper interpretation of § 3501. Were we writing on a clean slate, we might agree. As explained above, however, our Court has already resolved these issues in Gereau. The primary basis on which Corley would have us distinguish Gereau is that it relied for its holding on Second and Ninth Circuit precedent, which the Courts of Appeals in those Circuits have since repudiated. While that may be a reason to revisit Gereau en banc, it is not a legitimate reason for a panel of this Court to refuse to follow Gereau. Although this case raises difficult legal questions to which Courts of Appeals have given different answers, we are not bound by the decisions in our sister Circuits, and where no subsequent decisions of the Supreme Court or substantive amendments to the statute have undermined our holding in Gereau, we follow it. See Third Circuit I.O.P. 9.1; Reich v. DM. Sabia Co., 90 F.3d 854, 858 (3d Cir.1996). ****** In this case, the District Court found that although the police officers questioned Corley before presenting him to a magistrate judge, and although part of the delay in presentment was for the purpose of getting Corley to confess, his confessions were voluntarily given. Corley does not seriously dispute that finding, and we dis- cern no error in it. Following Gereau, we" }, { "docid": "20510772", "title": "", "text": "his plea in the district court); Igartúa v. United States, 626 F.3d 592, 603 (1st Cir. 2010) (“[Arguments that are not raised in a timely manner are forfeited,” and “[p]lain error review may be available for forfeited arguments.”). Rather, because Sevilla did not adequately challenge these errors on appeal, his Rule 11 claims are waived entirely. See Anderson, 745 F.3d at 598; Igartúa, 626 F.3d at 603 (explaining that plain error review “is seldom available for claims neither raised below nor on appeal”). Though we may, on rare occasion, exercise our discretion to address waived arguments — for instance, when they become available only as a result of intervening changes in law — we see no reason to do so here. See Anderson, 745 F.3d at 598; Igartúa, 626 F.3d at 603 (“Review is unavailable for waived arguments unless the court engages in the rare exercise of its power to excuse waiver.” (internal quotation marks and citation omitted)). Furthermore, even if we did exercise our discretion to hear Sevilla’s Rule 11 claims, they would not survive the high hurdle of plain error review. See Anderson, 745 F.3d at 598 (citing United States v. Padilla, 415 F.3d 211, 218-19 (1st Cir.2005) (en banc)). Thus, we turn to Sevilla’s first sentence. C. First Sentence Having found that the district judge lacked authority to do what he did after issuing the original January 26 judgment — with the result being that the initial plea remained intact — we originally remanded with instructions to reinstate the first sentence, a life sentence. As we stressed, this was not an unfair result because we had believed counsel had — on our instructions — certified that Sevilla understood this outcome was a risk of pursuing his appeal. At oral argument, we had explicitly asked Sevilla’s counsel if Sevilla understood that this appeal could subject him to an increased sentence. And after counsel submitted an unresponsive motion that did not address whether Sevilla understood the risks, we entered a written order again instructing counsel to inquire whether Sevilla wished to pursue the appeal even though “re-sentencing in this" }, { "docid": "22180544", "title": "", "text": "v. Bostic, 371 F.3d 865, 872 (6th Cir.2004); United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.1990). We believe that the burden of objecting to errors remains with the parties. FUENTES, Circuit Judge, concurring in part and concurring in the judgment. I agree with the majority that it would be unjust to employ the Court’s new rule retroactively, and that we must therefore apply the rule articulated in United States v. Sevilla, 541 F.3d 226 (3d Cir.2008), to the case at hand. Furthermore, I agree that the record before us does not suggest that the district court meaningfully considered Flores-Mejia’s cooperation argument. Therefore, I concur in the decision to remand for resentencing. But like the dissenters, I continue to believe that Sevilla should be applied not just to those sentenced before today’s opinion, but also going forward. As Judge Greenaway notes in his compelling opinion, such an outcome is dictated by the plain language of Rule 51 of the Federal Rules of Criminal Procedure. GREENAWAY, JR., Circuit Judge, dissenting with whom SMITH, SHWARTZ and SLOVITER, join, and with whom FUENTES, Circuit Judge, joins in part. In our system of jurisprudence, we examine our principle, consider the facts and the law and make decisions. The venerable principle of stare decisis requires reexamination not when we come up with a better mouse trap but when there is a principled basis for change. See Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2805, 81 L.Ed.2d 164 (1984) (“[A]ny departure from the doctrine of stare decisis demands special justification.”); Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 854, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (“The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit.... At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.”). Indeed, “the very point of stare decisis is to forbid us from revisiting a debate every time there are reasonable arguments to be made on" }, { "docid": "22180529", "title": "", "text": "criminal history category of VI and an offense level of 21, including a 16-level enhancement for a prior violent crime, his Guidelines range was 77 to 96 months in prison. In his sentencing memorandum, Flores-Mejia raised several grounds for downward departures and variances. At issue here is his argument that he cooperated with the government by providing information regarding a homicide and a prostitution ring. At the sentencing hearing, the District Court heard argument on a number of Flores-Mejia’s grounds for mitigation and denied them. The parties then addressed Flores-Mejia’s argument that his cooperation warranted a reduced sentence. Both the government and defense counsel made proffers on the issue. The government argued that the homicide in question had already been solved and that the information about the prostitution ring did not involve involuntary sex trafficking or children and so it fell outside the ordinary purview of federal law enforcement. For those reasons, the government asserted that the cooperation did not warrant a variance. Following this colloquy, the District Court stated: “Okay, thanks. Anything else?” There was no reply from either party; instead each side summed up its position on sentencing. On completion of the summations, the District Court proceeded to sentence Flores-Mejia to 78 months in prison. Defense counsel did not at that time object to the court’s failure to rule on the request for variance based on the alleged cooperation, nor did she point out the District Court’s failure to explicitly address or give further consideration to that argument. Flores-Mejia appealed, contending that his sentence is procedurally unreasonable because the District Court failed to sufficiently consider his argument that his attempts at cooperation warranted a lower sentence. Based on our decision in Sevilla, a divided panel of this Court agreed. United States v. Flores-Mejia, 531 F.App’x 222 (3d Cir.2013). We then granted en banc review. II. PRESERVING A CLAIM OF PROCEDURAL ERROR FOR APPEAL In United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006), we set forth a three-step framework for sentencing. First, a district court must calculate a defendant’s Guidelines sentence as it would have before United" }, { "docid": "20510773", "title": "", "text": "survive the high hurdle of plain error review. See Anderson, 745 F.3d at 598 (citing United States v. Padilla, 415 F.3d 211, 218-19 (1st Cir.2005) (en banc)). Thus, we turn to Sevilla’s first sentence. C. First Sentence Having found that the district judge lacked authority to do what he did after issuing the original January 26 judgment — with the result being that the initial plea remained intact — we originally remanded with instructions to reinstate the first sentence, a life sentence. As we stressed, this was not an unfair result because we had believed counsel had — on our instructions — certified that Sevilla understood this outcome was a risk of pursuing his appeal. At oral argument, we had explicitly asked Sevilla’s counsel if Sevilla understood that this appeal could subject him to an increased sentence. And after counsel submitted an unresponsive motion that did not address whether Sevilla understood the risks, we entered a written order again instructing counsel to inquire whether Sevilla wished to pursue the appeal even though “re-sentencing in this matter presented the risk to [Sevilla] of receiving a sentence greater than his current sentence of 405 months and up to life imprisonment, particularly if the district court were to consider either [Sevilla’s] alleged involvement in the ‘Pitufo’ murder or calculate a base sentencing level and make appropriate upward departures.” (Emphasis in original.) Counsel filed a second motion confirming that Sevilla wanted to proceed despite the risk. Writing in support of Sevilla’s petition for panel and en banc review, counsel now says he did not appreciate that Sevilla faced the risk that the initial punishment of life imprisonment would be reinstated by this court, and the case remanded. And because he misunderstood our request, counsel only warned Sevilla that remand might result in a higher sentence, not that the initial sentence might be reinstated by us. Given this development, we modify the panel opinion, simply vacate the sentence imposed, do not ourselves reinstate any sentence, and remand for resentencing by the same judge. CONCLUSION With our work finished, we vacate all judgments and orders of" }, { "docid": "22269852", "title": "", "text": "at 572. We are mindful of cases in our Court that arguably suggest that plain error review applies where a defendant fails to object to a district court’s explanation of its sentence. See, e.g., United States v. Dragon, 471 F.3d 501, 505 (3d Cir.2006) (“[The defendant] claims his sentence is unreasonable under Booker because the District Court failed to adequately consider the parsimony provision of 3553(a), which directs the court to ‘impose a sentence sufficient, but not greater than necessary!,]’ to comply with the purposes specified in the statute. Because [the defendant] did not raise this objection at the sentencing hearing, we review his claim for plain error.”); Lloyd, 469 F.3d at 325-26 (stating that defendant “did not advance” in the district court his contention that the district court was obligated to state its reasoning under § 3553(c)(1), and concluding that the district court’s explanation “could not rise to the level of plain error or, indeed, any error at all”); United States v. Parker, 462 F.3d 273, 278-79 (3d Cir.2006) (stating that, because the defendant did not object before the district court to its explanation of the sentence under § 3553(c), the court of appeals would “review this claim for plain error,” and concluding that the district court “did not plainly err” in commenting on the § 3553(a) factors). Even assuming those decisions conflict with our later decision in Grier, however, we must follow Grier. As an en banc opinion, Grier is intervening and controlling authority. See Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir.1996) (“Although a panel of this court is bound by, and lacks authority to overrule, a [prece-dential] decision of a prior panel, a panel may reevaluate a precedent in light of intervening authority and amendments to statutes or regulations.” (citation omitted)). Here, Sevilla squarely raised his difficult childhood and the crack/powder disparity, both in his sentencing memorandum and at his sentencing hearing. Under Grier, then, the District Court’s failure to address those issues did not require Sevilla to re-raise them to avert plain error review of these omissions. B. Meaningful Consideration Review “To" }, { "docid": "20510804", "title": "", "text": "(“Simply noting an argument in passing without explanation is insufficient to avoid waiver.”). If our standard for escaping waiver required that arguments be pled with the highest degree of craftsmanship, or that they be situated in the most persuasive and logical order, I might well find myself in agreement with the majority. For good reason, however, that is not our rule. As it stands, we require only that an argument be raised, and raised squarely. See, e.g., Dunbar, 553 F.3d at 63 n. 4; Sepulveda-Contreras, 466 F.3d at 170 n. 4. This is a requirement that Sevilla has more than met. The flawed nature of the majority’s holding is made even more apparent when considered in context. After all, what reasonable defendant would expend any more than a succinct portion of his or her brief arguing against a sentence which had already been vacated by the sentencing judge, and for which the government was not advocating? See United States v. Ayalar-Vázquez, 751 F.3d 1, 19 (1st Cir.2014) (holding that a “perfunctory statement” was sufficient to avoid waiver where it served to put the court on notice of clearly applicable argument). That Sevilla had the foresight even to include this argument in his brief, perhaps to ward off just such an overly formalistic and strained reading as the majority now adopts, is in itself impressive. Still, the majority demands that he should have expended more of his appellate efforts tilting at windmills. I cannot agree that this claim was waived by Sevilla on appeal. Indeed, if any waiver occurred, it was the government which waived the argu ment that Sevilla’s first sentence should be reinstated. It was not until the government’s opposition to Sevilla’s motion for rehearing that this position was first argued. B. Plain-Error Review The majority continues on to say that, even if Sevilla’s Rule 11 claim were not waived, it would still fall under plain-error review, because “Sevilla did not object on Rule 11 grounds during the initial colloquy or move to withdraw his plea in the district court.” It is true that Sevilla did not object at" }, { "docid": "22180528", "title": "", "text": "that error has become evident, has not stated that objection on the record. We now hold that in such a situation, when a party wishes to take an appeal based on a procedural error at sentencing — such as the court’s failure to meaningfully consider that party’s arguments or to explain one or more aspects of the sentence imposed — that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal. Our panel holding in United States v. Sevilla, 541 F.3d 226 (3d Cir.2008), differs from our holding today and is superseded. I. FACTS Flores-Mejia, a citizen of Mexico, pled guilty to one count of reentry after deportation, in violation of 8 U.S.C. § 1326(a). This illegal reentry was in fact Flores-Mejia’s sixth illegal entry into the United States. Flores-Mejia had an extensive criminal record with 18 prior convictions, including several for repeated assaults on his wife. As his attorney admitted at sentencing, “This man has an atrocious record.” JA103. Based on a criminal history category of VI and an offense level of 21, including a 16-level enhancement for a prior violent crime, his Guidelines range was 77 to 96 months in prison. In his sentencing memorandum, Flores-Mejia raised several grounds for downward departures and variances. At issue here is his argument that he cooperated with the government by providing information regarding a homicide and a prostitution ring. At the sentencing hearing, the District Court heard argument on a number of Flores-Mejia’s grounds for mitigation and denied them. The parties then addressed Flores-Mejia’s argument that his cooperation warranted a reduced sentence. Both the government and defense counsel made proffers on the issue. The government argued that the homicide in question had already been solved and that the information about the prostitution ring did not involve involuntary sex trafficking or children and so it fell outside the ordinary purview of federal law enforcement. For those reasons, the government asserted that the cooperation did not warrant a variance. Following this colloquy, the District Court stated: “Okay, thanks. Anything else?” There" }, { "docid": "22180540", "title": "", "text": "to the sentencing court’s procedural error after sentencing, we will not apply this new rule retroactively and will, instead, review for abuse of discretion. Applying that standard, we have held that a district court abuses its discretion when it fails to give “meaningful consideration” to an argument advanced by the defendant. Although it’s a close issue, we conclude that the Court’s question (“Ok, thanks. Anything else?”) is not on this record sufficient to reflect that meaningful consideration was given to Flores-Mejia’s cooperation argument. The circumstances here are very near those we faced in Sevil-la, in which we held that the District Court’s general statement that it had “considered all the § 3553(a) factors” was not enough to show meaningful consideration of a specific argument. While the question put by the District Court here, in the context of the colloquy as a whole, might be read to reflect that the court had heard and considered the specific argument about cooperation, there was no specific ruling provided by the court or any other effort to address the argument. IV. CONCLUSION For the foregoing reasons, we will vacate the sentence and remand to the District Court for resentencing. . A party may of course make an objection to a procedural error at an earlier point as when, for example, a substantive request is denied and procedurally the defendant has objected to a lack of meaningful consideration of that request. Having already made an objection when the procedural error became evident, the defendant need not repeat the objection after sentence is imposed. . In so holding, the panel in Sevilla considered itself bound by our prior en banc decision in United States v. Grier, 475 F.3d 556 (2007) (en banc). . Of course, as we set out above, if at any prior point a district court had ruled on the request for a variance, the defendant could object to a lack of meaningful consideration of the request at that time and there would be no need to do so again after sentence was imposed. . For this reason, the rule we adopt is consistent" }, { "docid": "22180543", "title": "", "text": "on district courts: not only do they have to find time in their busy dockets to revisit errors that could have been resolved with a contemporaneous objection at the original sentencing but they also have the burden of reconvening the parties involved, including the defendant, attorneys, witnesses, and law enforcement authorities. See, e.g., United States v. Williams, 399 F.3d 450, 459 (2d Cir.2005) (warning of the burdens of resen-tencing, including assuring the presence of the defendant, who \"will often be serving a sentence at a distant location”). . Because defendants sentenced before the issuance of this opinion had not been warned that they had a duty to object to the sentencing court’s procedural error after sentencing, we will not apply this new rule retroactively. . To ensure that timely objections are made, we encourage district courts at sentencing to inquire of counsel whether there are any objections to procedural matters. However, unlike the Sixth and Eleventh Circuit Courts of Appeals, we will not make this a requirement that district judges must follow. Contra United States v. Bostic, 371 F.3d 865, 872 (6th Cir.2004); United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.1990). We believe that the burden of objecting to errors remains with the parties. FUENTES, Circuit Judge, concurring in part and concurring in the judgment. I agree with the majority that it would be unjust to employ the Court’s new rule retroactively, and that we must therefore apply the rule articulated in United States v. Sevilla, 541 F.3d 226 (3d Cir.2008), to the case at hand. Furthermore, I agree that the record before us does not suggest that the district court meaningfully considered Flores-Mejia’s cooperation argument. Therefore, I concur in the decision to remand for resentencing. But like the dissenters, I continue to believe that Sevilla should be applied not just to those sentenced before today’s opinion, but also going forward. As Judge Greenaway notes in his compelling opinion, such an outcome is dictated by the plain language of Rule 51 of the Federal Rules of Criminal Procedure. GREENAWAY, JR., Circuit Judge, dissenting with whom SMITH, SHWARTZ and" }, { "docid": "22180532", "title": "", "text": "(internal citation omitted). This error of failure to give meaningful consideration must be brought to the district court’s attention through an objection. If a defendant fails to preserve the error for appeal by objecting, the authority of the court of appeals to remedy the error is “strictly circumscribed.” Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). However, Rule 52(b) of the Federal Rules of Criminal Procedure provides for limited relief: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” The issue in this appeal is whether, in order to preserve the objection for appeal and to avert plain error review, a defendant must object after the sentence is pronounced to the district court’s failure to meaningfully consider his argument. In Sevilla, we held that “the District Court’s failure to address those issues [when sentence was pronounced] did not require Sevilla to re-raise them to avert plain error review of these omissions.” Sevilla, 541 F.3d at 231. However, for the reasons that follow, we now hold that a defendant must raise any procedural objection to his sentence at the time the procedural error is made, i.e., when sentence is imposed without the court having given meaningful review to the objection. Until sentence is imposed, the error has not been committed. At the time that sentence is imposed, if the objection is made, the court has the opportunity to rectify any error by giving meaningful review to the argument. We are adopting this new rule for several reasons. First, we are dealing with a procedural objection to the sentencing process. We must appreciate the difference between a challenge to the substantive reasonableness of the sentence and a challenge to its procedural reasonableness. While a substantive objection to the sentence that a court will impose is noted when made and need not be repeated after sentencing, a procedural objection is to the form that the sentencing procedure has taken, e.g., a court’s failure to give mean ingful review to a defendant’s substantive arguments. See United" }, { "docid": "20510791", "title": "", "text": "sentence, the sentence would ordinarily stand. . Sevilla’s petition for panel and en banc review (\"the petition,” for easy reading), with the support of an amicus curiae, argues that our prior opinion clashed with Greenlaw v. United States, 554 U.S. 237, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008). Given our result here, we need not — and so do not — decide whether Sevilla and his amicus are correct. . Contrary to what Sevilla says in his petition, the judge has never \"confessed error” or said that consideration of the Pitufo murder was improper. And as we hold, the judge’s proper consideration of that murder does not, standing alone, demonstrate bias warranting the judge’s disqualification. So Sevilla’s argument that the judge abused his discretion by refusing to disqualify himself, to the extent it relies on the judge's consideration of this information, fails. See United States v. Snyder, 235 F.3d 42, 46 (1st Cir.2000) (explaining that we apply an abuse of discretion standard when a trial judge refuses to recuse himself). Because the judge also properly took into account the Pitufo murder’s impact on the community during sentencing, see United States v. Politano, 522 F.3d 69, 74 — 75 (1st Cir.2008) (explaining that the sentencing judge can consider the characteristics of the community in which a defendant’s conduct arose and the conduct’s impact on the community), the judge likewise did not abuse his discretion by refusing to disqualify himself on that basis. From all this we see no reason for us to direct that a different judge handle the remand. “Ordinarily, district judges are free to keep or to reassign remanded cases in accordance with local rules and practice[.]” United States v. Bryant, 643 F.3d 28, 35 (1st Cir. 2011); see also D.P.R.Crim. R. 107 (declaring that \"[cjases remanded for resentencing shall be assigned to the judge who imposed the vacated sentence, unless otherwise ordered by the court of appeals”). Ultimately we believe the original judge can sentence Sevilla fairly if he opts to keep the case, and so we do not agree with Judge Torruella that a remand to the" }, { "docid": "20510790", "title": "", "text": "that defendant would not have entered guilty plea but for Rule 11 error where plea agreement did not include maximum penalty and court did not mention maximum penalty at change-of-plea hearing). So Sevilla cannot meet the third prong, and the judge’s failure to warn Sevilla of Count Two's maximum penalty was not plain error. As for the other alleged Rule 11 violation— the judge’s failure to warn Sevilla he was ineligible for parole — Rule 11 does not require a judge to inform a defendant of his parole ineligibility. See Johnson v. United States, 650 F.2d 1, 4 (1st Cir.1981). Thus, this omission was not error — plain or otherwise. . We held — and still hold — that the judge did not abuse his discretion by considering the Pitufo murder information at Sevilla’s first sentencing hearing because the judge is authorized by statute to consider this type of relevant evidence about Sevilla’s background, character, conduct, history, and characteristics. See 18 U.S.C. §§ 3553(a)(1), 3661. Because Sevilla failed to argue any other problem with the sentence, the sentence would ordinarily stand. . Sevilla’s petition for panel and en banc review (\"the petition,” for easy reading), with the support of an amicus curiae, argues that our prior opinion clashed with Greenlaw v. United States, 554 U.S. 237, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008). Given our result here, we need not — and so do not — decide whether Sevilla and his amicus are correct. . Contrary to what Sevilla says in his petition, the judge has never \"confessed error” or said that consideration of the Pitufo murder was improper. And as we hold, the judge’s proper consideration of that murder does not, standing alone, demonstrate bias warranting the judge’s disqualification. So Sevilla’s argument that the judge abused his discretion by refusing to disqualify himself, to the extent it relies on the judge's consideration of this information, fails. See United States v. Snyder, 235 F.3d 42, 46 (1st Cir.2000) (explaining that we apply an abuse of discretion standard when a trial judge refuses to recuse himself). Because the judge also properly" } ]

[ { "docid": "7066473", "title": "", "text": "debt”). It is clear that the power to cure under the Bankruptcy Code authorizes a plan to nullify all consequences of default,' including avoidance of default penalties such as higher interest. Great Western’s three additional arguments may be disposed of more quickly. First, it argues that even if the Code allows cure in this case, Entz-White must nevertheless pay the post-maturity interest rate on the delayed debt. It reasons that cure requires reinstatement of the original terms of the debt, and the original terms of the debt include a provision that unpaid principal after June 1,1984 accrues interest at a higher rate. This argument is spurious. It amounts to saying, once more, that the higher rate of interest is not a consequence of default that can be cured. Second, Great Western points to 11 U.S. C. § 506(b), which states: To the extent that\" an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section [covering administrative costs], is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose. Great Western asserts that it is an overse-cured creditor and as such is entitled under section 506(b) to interest on its claim that should be determined by the terms of the contract, including the post-default interest rate, between Great Western and Entz-White. The reorganization plan’s payment to Great Western did allow the holder of the claim interest accrued thereon. It did not, of course, allow the post-default rate. To have done so would have completely eliminated the benefits of cure in this case. Great Western cites no case endorsing such a result. The more natural reading of sections 506 and 1124 is that the interest awarded should be at the market rate or at the pre-default rate provided for in the contract. See In re Southeast Co., 81 B.R. 587, 592 (BAP 9th Cir.1987) (holding that reliance damage under section 1124(2)(C) “does not" } ]

[ { "docid": "9457333", "title": "", "text": "the security interest which undisputedly survived discharge, GECC urges that the clause in that Contract pertaining to recovery of costs incident to enforcing that security interest must have survived the Debtor’s discharge. It is important to note at the outset, before any discussion of why the law does not support GECC’s contention, that the Contract clause, quoted at page 606 supra, is at best ambiguous on the issue of whether it allows recovery of “reasonable attorney’s fees” incurred in a replevin action. It appears that it is only a debtor whose account is “returned for collection” of the unpaid balance who is liable for “reasonable attorney’s fees.” GECC is admittedly confined to an action to recover the goods, not collect the balance, by reason of § 524(a). As the Contract form was obviously drafted by GECC or its assignor, Levitz, this ambiguity must be construed against GECC. Cf. In re Flicker, 115 B.R. 809, 825-26 (Bankr.E.D.Pa.1990); In re Garnett, 99 B.R. 293, 296-97 (Bankr.E.D.Pa.1989); and In re Vitelli, 93 B.R. 889, 896-97 & n. 4 (Bankr.E.D.Pa.1988) (clause permitting mortgagee to recover attorney’s fees in collection action found not to justify fee recovery for services performed in bankruptcy court). Assuming arguendo that the Contract could be said to permit recovery of costs incurred solely in pursuit of replevin of goods, GECC’s contention must nevertheless be rejected because its replevin claim, including the claim for incidental costs and “reasonable attorney’s fees” provided in the Contract, was a pre-petition claim. GECC’s right to enforce its lien on the furniture survived discharge only because it did not involve the personal liability of the Debtor. The incidental claim for “special damages,” however, clearly represents an attempt to collect upon a personal liability of the Debtor and, as such, was discharged along with her other debts. The claim for “special damages” was a pre-petition claim regardless of the accuracy of GECC’s contention that it accrued post-petition. The Debtor’s default on her payments to GECC, beginning on October 15, 1989, gave rise to a possible claim by GECC for, inter alia, repossession of the furniture as well" }, { "docid": "5743518", "title": "", "text": "VAN GRAAFEILAND, Circuit Judge. This appeal raises for the second time the question whether the super-priority security interest held by General Electric Credit Corporation (GECC) in all of the assets of the debtors in possession, Flagstaff Foodservice Corporation and its related companies (Flagstaff), may be subordi nated to certain administrative expenses. In an earlier opinion, 739 F.2d 73 (2d Cir.1984) (referred to hereafter as Flagstaff I), we reversed an order authorizing funds subject to GECC’s lien to be used in payment of interim fees and disbursements of the attorneys for the debtors in possession and the Committee of Unsecured Creditors. The issue now before us is whether the district court erred in affirming the bankruptcy court’s order that payment of outstanding payroll taxes incurred during Flagstaff’s attempted reorganization be made either from those same funds or directly by GECC. Because we conclude that the district court did err, we again reverse. Many of the pertinent facts were discussed in our prior opinion. See 739 F.2d at 74-75. As stated in that opinion, a financing order which was issued shortly after Flagstaff filed its chapter 11 petition authorized Flagstaff to borrow additional funds from GECC pursuant to a security agreement annexed to the order. GECC was given a security interest that would cover all present and future property of the estate and would have priority over all existing and future debts of Flagstaff and “all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy Code.” The order further provided that neither Flagstaff nor its successors could apply again for permission to use any property subject to GECC’s lien. Despite this last provision, representatives of Flagstaff informed GECC on September 17, 1981 that Flagstaff would require additional cash to pay various operating expenses, including payroll taxes. Relying upon Flagstaff’s cash needs projections, GECC agreed to make certain “over-advances” in addition to the amounts authorized in the original financing order. This “overadvance” agreement was incorporated in an order of the bankruptcy court dated October 29, 1981. At some time, the exact date being disputed, it became obvious that" }, { "docid": "9457343", "title": "", "text": "assessments for maintenance fees under a pre-petition agreement despite the debtors’ Chapter 7 discharge. Analyzing the issue in terms of § 101(4)(A)’s definition of a “claim,” Horton held that, since the creditor’s “right to payment” of the post-petition fees did not arise until such fees became due, which occurred after the Debt- or’s discharge, the creditor’s claim for the fees was not subject to the discharge. 87 B.R. at 652. Furthermore, the debtor’s liability for such debts had not been extinguished by the discharge because, according to the court, the Bankruptcy Code only intended to discharge pre-petition debts, not liabilities. 87 B.R. at 652. Because the debtors in Horton remained the record owners of the property, as well as retaining possession of the property, post-discharge, the court found that personal liability under the contract for any post-petition debts continued to rest with them. Id. Accord, In re Rosteck, 95 B.R. 558 (N.D.Ill.1988), vacated, 99 B.R. 400 (N.D.Ill.1989), aff'd, 899 F.2d 694 (7th Cir.1990); and In re Harvey, 88 B.R. 860 (Bankr.N.D.Ill.1988). We decline to accept the rationale of either line of the condominium-fee cases as applicable to the present situation. The debts at issue in those cases differ from the debt claimed by GECC in several important aspects. First of all, in the case of maintenance fees which become due on a certain date, it is quite clear that, if such date occurred post-petition, the amount sought necessarily accrued post-petition. The same is not true in the present case. As discussed at pages 610-612 supra, the basis of GECC’s claim for post-petition “special damages” is that the Debtor’s “unlawful detention” of the furniture caused GECC to incur the expense of suing to replevy it. However, since we reject the contention that it was “unlawful” for the Debtor to “detain” the furniture without redeeming the furniture or reaffirming her indebtedness to GECC, see pages 608-610 supra, we cannot accept this analysis. Furthermore, unlike condominium fees, which are periodically due under a contract, the accrual of GECC’s replevin costs depended on the less definite occurrence of two events: the Debtor’s default and" }, { "docid": "9457317", "title": "", "text": "(GECC)” as an unsecured debt. However, the Debtor now concedes that her indebtedness to the Respondent, GENERAL ELECTRIC CAPITAL CORPORATION (“GECC”), is secured by a purchase-money security interest in certain furniture purchased by the Debtor pursuant to a Revolving Charge Account Agreement of August 16, 1989 (“the Contract”) with GECC’s assignor, Levitz Furniture Corporation (“Levitz”). In the statement of her intention regarding consumer debts secured by estate property accompanying her Schedules, filed pursuant to 11 U.S.C. § 521(2)(A), the Debt- or expressed a desire to retain the furniture in issue subject to GECC’s security interest. However, the Debtor took no action, such as the filing of a motion to redeem or reaffirm the debt with respect to the aforementioned collateral. On May 14, 1990, GECC filed a Motion for Relief from Automatic Stay and/or Adequate Protection (“the Stay Motion”). In the Stay Motion, GECC alleged that it had received no payments from the Debtor since October 15, 1989. The Debtor filed an Answer to the Stay Motion, admitting that no payments had been made since October 15, 1989, but averring that GECC’s interests were adequately protected because the entry of a Discharge Order, which would terminate the Stay, was imminent. See 11 U.S.C. § 362(c)(2)(C). On May 15, 1990, the day after the Stay Motion was filed, a Discharge Order was indeed entered. After GECC withdrew the Stay Motion, the Debtor’s case was closed on July 12, 1990. On or about December 1, 1990, GECC filed a Complaint in Replevin against the Debtor in the Court of Common Pleas of Delaware County, Pennsylvania (“the Re-plevin Suit”). In the Replevin Suit, GECC averred that it was a fully secured creditor of the Debtor, and that its claim of a right to obtain possession of the secured proper ty, a sofa and a loveseat, subject to its purchase money security interest, survived the Debtor’s bankruptcy discharge. In its prayer for relief, however, GECC sought not only possession of the sofa and loveseat, but “special damages in the amount of $610.40 for attorney’s fees plus the costs of repossession.” The latter prayer was" }, { "docid": "7992129", "title": "", "text": "that interest “shall be allowed” on over-secured claims. One line of authority holds that the only limitation on the over-secured creditor’s right to collect post-petition interest, at pre or post-petition default rates, is enforceability of the right to collect such interest under non-bankruptcy law—ordinarily applicable state law. Unlike interest, the statute mandates a further qualification for the enforceability of the over-secured creditor’s “fees, costs, or charges.” Those must not only be provided for under the agreement under which the claim arose, but they must also be “reasonable.” A second line of authority imposes the fees-costs-and-charges “reasonableness” mandate from section 506(b) on interest as well, but only on default interest. These decisions reason that default interest is not really interest at all for section 506(b) purposes, but instead is a “charge” which is subject to the statutory reasonableness limitation of section 506(b). See In re AE Hotel Venture, 321 B.R. 209 (Bankr.N.D.Ill.2005); In re Kalian, 178 B.R. 308 (Bankr.D.R.I.1995). The rationale of the AE Hotel Venture case is unpersuasive. The court maintains that pre-default interest compensates for the time value of money, but post-default interest does not; it represents some other “charge,” and thus, must be reasonable under section 506(b). This is a distinction without a difference. Pre and post-default interest rates are simply matters of pricing. The money costs more if not repaid when agreed. Had Congress wished to distinguish between the treatment of pre and post-default interest by section 506(b), it could easily enough have said so. As noted in Averch, “The Right of Overse-cured Creditors ... ”, supra,: A standard rule of statutory construction is that where Congress has demonstrated the ability to draft language to achieve a particular result, and then fails to employ that same language in a similar situation, it can be presumed that the failure was deliberate. In section 506(b) of the Code, Congress expressly provided that attorneys’ fees, costs and other charges must be “reasonable” in order to provide a federal standard of review for such amounts. By omitting any reasonableness standard for awards of interest, however, Congress arguably made clear its intent" }, { "docid": "9457332", "title": "", "text": "secured debt” by simply stating that it was not aware of any such requirement in the Code nor had the creditor identified its source. 64 B.R. at 738. Furthermore, the creditor in Lowry, supra, made essentially the same argument unsuccessfully. The court pointed to Congress’s failure to provide enforcement mechanisms for a debtor’s non-compliance with § 521, such as a penalty to the debtor or a specific remedy for a creditor, and concluded that violations of that section were not intended to give rise to increased creditors’ rights. 882 F.2d at 1546. 3. THE DEBTOR’S ENTIRE LIABILITY TO GECC IS A PRE-PETITION CLAIM, PROHIBITING GECC FROM ENFORCING ANY ASPECT OF THE DEBTOR’S PERSONAL LIABILITIES TO IT. GECC’s alternative theory for justifying its making a claim for “special damages” in the Replevin Suit is that the Debtor’s post-discharge behavior, again referred to as “unlawful,” caused it to incur costs which would be recoverable both under state law applicable to replevin actions as well as under the Contract between the parties. Since the Contract gave rise to the security interest which undisputedly survived discharge, GECC urges that the clause in that Contract pertaining to recovery of costs incident to enforcing that security interest must have survived the Debtor’s discharge. It is important to note at the outset, before any discussion of why the law does not support GECC’s contention, that the Contract clause, quoted at page 606 supra, is at best ambiguous on the issue of whether it allows recovery of “reasonable attorney’s fees” incurred in a replevin action. It appears that it is only a debtor whose account is “returned for collection” of the unpaid balance who is liable for “reasonable attorney’s fees.” GECC is admittedly confined to an action to recover the goods, not collect the balance, by reason of § 524(a). As the Contract form was obviously drafted by GECC or its assignor, Levitz, this ambiguity must be construed against GECC. Cf. In re Flicker, 115 B.R. 809, 825-26 (Bankr.E.D.Pa.1990); In re Garnett, 99 B.R. 293, 296-97 (Bankr.E.D.Pa.1989); and In re Vitelli, 93 B.R. 889, 896-97 & n. 4" }, { "docid": "1137687", "title": "", "text": "of the collateral exceeds the debt obligation) the creditor is entitled to postpetition interest to the extent of the security’s value. 11 U.S.C. § 506(b). Pursuant to § 506(b), an overse-cured creditor “shall be allowed ... interest on [its] claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.” Id. Furthermore, the creditor’s claim for interest cannot exceed the excess value of the collateral. Id. Thus, the oversecured creditor may only receive postpetition interest on the value of the collateral exceeding the claim. While the Court must initially look to § 506(b), which allows reasonable fees and costs provided for in an agreement between parties, the ultimate question of whether the disputed fees here are reasonable and allowable is a matter of state law. In re Virginia Foundry, 9 B.R. 493 (D.C.Va.1981); see also Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). A. Under New Jersey Law, The Clause Providing For Default Rate of Interest Is Unenforceable As A Penalty. The issues of this case focus upon the enforceability of certain clauses included in the mortgage agreement. These clauses impose higher interest rates in the event of a default or a late payment. In United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989), the Supreme Court held that 11 U.S.C. § 506(b) entitled a noncon-sensual oversecured creditor, as well as a consensual creditor, the right to receive postpetition interest. Thus, a creditor is entitled to postpetition interest as long as it is oversecured. However, neither the Bankruptcy Code nor the Supreme Court has resolved the issue of whether an ov-ersecured creditor is entitled to interest at a higher, though contracted for, default rate of interest. Nevertheless, “[t]he Supreme Court has determined that a bankruptcy court is not empowered to give a creditor rights that state law withholds.” In re White, 88 B.R. 498, 510 (Bankr.D.Mass.1988), citing, Butner v. United States, supra. The determination of whether the contract to increase interest after a default is a penalty, is one" }, { "docid": "15574929", "title": "", "text": "610 F.2d 1157, 1164 (3d Cir. 1979).... We do not believe that our ruling in the Memo as to the rents issue was “clearly erroneous,” nor would it “work a manifest injustice” upon GECC, irrespective of the intervening Mountain View decision. Therefore, we reaffirm the conclusion set forth in the Memo, i.e., that GECC does not have a valid security interest in the rents generated from the Property. 3. SINCE NO MARKET FOR LOANS SIMILAR TO THE PROPOSED CRAMDOWN OF GECC’S SECURED CLAIM EXISTS, THE INTEREST RATE ON GECC’S SECURED CLAIM WAS PROPERLY ■ ESTABLISHED AT NINE (9%) PERCENT, BASED ON THE TREASURY BILL ’ RATE PLUS A RISK FACTOR; THE DEBTOR’S PLAN IS THEREFORE CONFIRMABLE. GECC argues that the nine (9%) percent rate proposed by the Debtor to be paid on its secured claim is insufficient and does not provide it with the present value of its claim as required under 11 U.S.C. § 1129(b)(2)(A). A court may confirm a Chapter 11 debtor’s plan of reorganization over the objections of creditors, ie., it may “cram down” a plan upon its creditors. The Bankruptcy Code, at 11 U.S.C. § 1129(b), sets forth the requirements that must be satisfied in order for the court to utilize its cram down powers to confirm a plan. It mandates that, in certain instances, payments under a plan must be “of a value, as of the effective date of the plan, equal to the allowed amount of the claim.” 11 U.S.C. §§ 1129(b)(2)(A)(i)(II), 1129(b)(2)(B)©, and (C)(i). The legislative history of § 1129 explains that, in order to determine the value “as of the effective date of the plan,” the payments proposed in the plan must be discounted to the present value as of the effective date of the plan. House Report, supra, at 414-15, U.S.Code Cong. & Admin.News 1978, p. 6370. See also In re Orfa Corp. of Philadelphia, 129 B.R. 404, 418 (Bankr. E.D.Pa.1991). A present value analysis is based ori the timing, number, and amount of payments; the interest rate; and the discount rate. Only when the discount rate equals the interest rate" }, { "docid": "9457334", "title": "", "text": "(Bankr.E.D.Pa.1988) (clause permitting mortgagee to recover attorney’s fees in collection action found not to justify fee recovery for services performed in bankruptcy court). Assuming arguendo that the Contract could be said to permit recovery of costs incurred solely in pursuit of replevin of goods, GECC’s contention must nevertheless be rejected because its replevin claim, including the claim for incidental costs and “reasonable attorney’s fees” provided in the Contract, was a pre-petition claim. GECC’s right to enforce its lien on the furniture survived discharge only because it did not involve the personal liability of the Debtor. The incidental claim for “special damages,” however, clearly represents an attempt to collect upon a personal liability of the Debtor and, as such, was discharged along with her other debts. The claim for “special damages” was a pre-petition claim regardless of the accuracy of GECC’s contention that it accrued post-petition. The Debtor’s default on her payments to GECC, beginning on October 15, 1989, gave rise to a possible claim by GECC for, inter alia, repossession of the furniture as well as whatever costs it incurred along with that action. Since the Debtor did not file her bankruptcy petition until December 29, 1989, GECC had over two months prior to bankruptcy to bring an action to vindicate such rights, but it did not do so. Thereafter, the automatic stay precluded such an action. The Bankruptcy Code defines a “claim,” in 11 U.S.C. § 101(4)(A), expansively, as a “right to payment,” and has been broadly interpreted, thereby permitting a wide spectrum of debtors’ obligations to be discharged. See, e.g., Johnson, supra, — U.S. at -, 111 S.Ct. at 2153-54; and Pennsylvania Department of Public Welfare v. Davenport, — U.S.-, 110 S.Ct. 2126, 2130, 109 L.Ed.2d 588 (1990). The term is broad enough to include “contingent” claims, which are defined as those “ ‘conditioned upon the occurrence of some future event which itself is uncertain or questionable.’ ” Ryan, supra, 100 B.R. at 415, quoting BLACK’S LAW DICTIONARY 290 (5th ed. 1979). However, in In re M. Frenville Co., 744 F.2d 332, 337 (3d Cir.1984), cert. denied sub" }, { "docid": "9457316", "title": "", "text": "OPINION DAVID A. SCHOLL, Bankruptcy Judge. A. INTRODUCTION The instant contested matter presents the issue of whether a pre-petition secured creditor’s demand of $610.40 for “special damages,” incidental to its claim in a post-discharge state-court replevin suit seeking recovery of its collateral, constitutes a violation of the discharge injunction of 11 U.S.C. § 524(a). We disagree with the secured creditor’s assertion that this demand, asserted as compensation for attorneys’ fees and repossession costs incidental to pursuing its replevin action, necessarily arose post-petition simply because its state-court complaint was filed post-petition. Instead, we find that the creditor’s demand for “special damages” was a pre-petition claim against the Debtor which was extinguished by operation of her bankruptcy discharge. Therefore, we hold that the assertion of this demand violates § 524(a). We will award the Debtor the $300 amount which she seeks as her attorney's fees for pursuit of this matter. B. FACTUAL AND PROCEDURAL HISTORY PATRICIA McNEIL (“the Debtor”) filed an individual Chapter 7 bankruptcy petition on December 29, 1989. Her Schedules included a claim of “Levitz (GECC)” as an unsecured debt. However, the Debtor now concedes that her indebtedness to the Respondent, GENERAL ELECTRIC CAPITAL CORPORATION (“GECC”), is secured by a purchase-money security interest in certain furniture purchased by the Debtor pursuant to a Revolving Charge Account Agreement of August 16, 1989 (“the Contract”) with GECC’s assignor, Levitz Furniture Corporation (“Levitz”). In the statement of her intention regarding consumer debts secured by estate property accompanying her Schedules, filed pursuant to 11 U.S.C. § 521(2)(A), the Debt- or expressed a desire to retain the furniture in issue subject to GECC’s security interest. However, the Debtor took no action, such as the filing of a motion to redeem or reaffirm the debt with respect to the aforementioned collateral. On May 14, 1990, GECC filed a Motion for Relief from Automatic Stay and/or Adequate Protection (“the Stay Motion”). In the Stay Motion, GECC alleged that it had received no payments from the Debtor since October 15, 1989. The Debtor filed an Answer to the Stay Motion, admitting that no payments had been made since" }, { "docid": "9457344", "title": "", "text": "the rationale of either line of the condominium-fee cases as applicable to the present situation. The debts at issue in those cases differ from the debt claimed by GECC in several important aspects. First of all, in the case of maintenance fees which become due on a certain date, it is quite clear that, if such date occurred post-petition, the amount sought necessarily accrued post-petition. The same is not true in the present case. As discussed at pages 610-612 supra, the basis of GECC’s claim for post-petition “special damages” is that the Debtor’s “unlawful detention” of the furniture caused GECC to incur the expense of suing to replevy it. However, since we reject the contention that it was “unlawful” for the Debtor to “detain” the furniture without redeeming the furniture or reaffirming her indebtedness to GECC, see pages 608-610 supra, we cannot accept this analysis. Furthermore, unlike condominium fees, which are periodically due under a contract, the accrual of GECC’s replevin costs depended on the less definite occurrence of two events: the Debtor’s default and GECC’s need to invoke subsequent remedial action. The former clearly occurred pre-petition, and the latter occurred post-petition only because that happened to be when GECC chose to take action. Thus, GECC’s claim accrued post-petition, but did so only because of its own litigation tactics. Unlike the case of condominium association-creditor’s claim for post-petition assessments, GECC’s “right to payment” of the expenses existed pre-petition. GECC had merely chosen not to invoke its right, thus delaying its need to incur such expenses. Moreover, we believe that the fees in issue in the condominium cases are more analogous to rental payments than they are to the Debtor’s contractual obligation to pay for the furniture under the Contract between the Debtor and Levitz. If any claim of GECC for such incidental costs as its “special damages,” including attorney’s fees, survived the Debtor’s discharge, it would have done so by virtue of the survival of GECC’s valid lien. However, the condominium cases do not discuss the lien on the respective debtors’ properties as relevant to the ascertainment of the respective" }, { "docid": "5539760", "title": "", "text": "rate of interest (15%) is 5.5%. Thus, MONY is entitled to additional interest at a default rate of 5.5% from July, 1992 (date of default) until March, 1993 (date of cure) in the amount of $330,-000. Thus, on the date of confirmation, MONY was owed the original principal amount of its note, $7.8 million plus the additional $330,000 in default interest for a total of $8,130,000. According to MONY’s expert, the Property is valued at $8.6 million. Even if attorneys’ fees and costs are included the conclusion remains the same, MONY is an oversecured creditor. Consequently under 11 U.S.C. § 506(b), MONY as an oversecured creditor, is entitled to reasonable fees and expenses. Additionally, MONY’s loan instruments contain lan guage requiring the Debtor to pay for reasonable attorneys’ fees resulting from nonperformance of the obligation under the loan. Thus, there can be no contest that MONY is due reasonable fees and costs. The Debtor, however, asserts that MONY’s attorneys fees and costs are unreasonable since its request represents almost four times the aggregate sum of fees incurred by Debtor’s present and past counsel. The task of evaluating. MONY’s request on this subject, however, is best left to the bankruptcy judge and need not be precisely determined prior to plan confirmation. Finally, MONY asserts that it is legally entitled to immediate payment of certain pre-petition rents and that because the Debtor’s Plan does not provide for the disposition of these funds, the bankruptcy court’s order confirming the Debtor’s Plan must be reversed. It is uneontested that on the date the Debtor filed its Chapter 11 petition, Debtor held $237,339.81 in prepetition rents. (DN 14) Paragraph 1.06 of the Deed of Trust executed between the Debtor and MONY provides for an absolute assignment of rents, and grants the Debtor a license to collect the rents so long as the Debtor is not in default under the parties’ loan documents. MONY perfected its interest in the prepetition rents when it recorded its Deed of Trust and Assignment of Rents with the Pima County Recorder’s office on June 15, 1987. See In re Scottsdale" }, { "docid": "5539759", "title": "", "text": "$8.6 million. (DN 155, ¶ 3) Today, MONY submits that its Allowed Secured Claim is $8,618,806.63. This includes two contested areas, default interest in the amount of $1,463,292.44 and attorneys fees and related costs in the amount of $221,026.49. Chapter 11 has two major objectives: (1) to permit successful rehabilitation of debtors (NLRB v. Bildisco and Bildisco, 465 U.S. 513, 527, 104 S.Ct. 1188, 1196, 79 L.Ed.2d 482 (1984)); and (2) to maximize the value of the estate (Toibb v. Radloff, 501 U.S. 157, 163—65, 111 S.Ct. 2197, 2201, 115 L.Ed.2d 145 (1991)). The Code broadly states that a Chapter 11 plan shall “provide adequate means for the plan’s implementation, such as ... curing or waiving of any default.” 11 U.S.C. § 1123(a)(5)(G). In this case, that means curing the event that triggered the default and returning to pre-default conditions. This “curing” event occurred on March, 1993, when Debtor brought current all past non-default interest due pursuant to the Stipulated Cash Collateral Order. The difference between the non-default rate of interest (9.5%) and the default rate of interest (15%) is 5.5%. Thus, MONY is entitled to additional interest at a default rate of 5.5% from July, 1992 (date of default) until March, 1993 (date of cure) in the amount of $330,-000. Thus, on the date of confirmation, MONY was owed the original principal amount of its note, $7.8 million plus the additional $330,000 in default interest for a total of $8,130,000. According to MONY’s expert, the Property is valued at $8.6 million. Even if attorneys’ fees and costs are included the conclusion remains the same, MONY is an oversecured creditor. Consequently under 11 U.S.C. § 506(b), MONY as an oversecured creditor, is entitled to reasonable fees and expenses. Additionally, MONY’s loan instruments contain lan guage requiring the Debtor to pay for reasonable attorneys’ fees resulting from nonperformance of the obligation under the loan. Thus, there can be no contest that MONY is due reasonable fees and costs. The Debtor, however, asserts that MONY’s attorneys fees and costs are unreasonable since its request represents almost four times the aggregate sum of" }, { "docid": "9457318", "title": "", "text": "October 15, 1989, but averring that GECC’s interests were adequately protected because the entry of a Discharge Order, which would terminate the Stay, was imminent. See 11 U.S.C. § 362(c)(2)(C). On May 15, 1990, the day after the Stay Motion was filed, a Discharge Order was indeed entered. After GECC withdrew the Stay Motion, the Debtor’s case was closed on July 12, 1990. On or about December 1, 1990, GECC filed a Complaint in Replevin against the Debtor in the Court of Common Pleas of Delaware County, Pennsylvania (“the Re-plevin Suit”). In the Replevin Suit, GECC averred that it was a fully secured creditor of the Debtor, and that its claim of a right to obtain possession of the secured proper ty, a sofa and a loveseat, subject to its purchase money security interest, survived the Debtor’s bankruptcy discharge. In its prayer for relief, however, GECC sought not only possession of the sofa and loveseat, but “special damages in the amount of $610.40 for attorney’s fees plus the costs of repossession.” The latter prayer was based upon a clause in the contract between the Debtor and Levitz which appears to read as follows: DEFAULT If you do not pay any minimum payment when due or breach any other terms of this agreement, we may demand, subject to any notice of default and right to cure default required by state law, the entire unpaid balance be paid immediately, and will start a lawsuit for collection of this balance. You agree to pay reasonable attorney’s fees if your account is returned for collection to an attorney who is not our salaried employee. Reasonable attorney’s fees and court costs will be awarded to the prevailing party in any action on this agreement. We also reserve our rights and remedies pertaining to repossession and resale of any repossessed merchandise as provided under applicable law. In response to GECC’s filing of the Re-plevin Suit, the Debtor filed, on April 19, 1991, the instant Motion to Reopen Case and Hold GECC in Civil Contempt (“the Motion”) in this court. In the Motion the Debtor seeks to" }, { "docid": "9457319", "title": "", "text": "based upon a clause in the contract between the Debtor and Levitz which appears to read as follows: DEFAULT If you do not pay any minimum payment when due or breach any other terms of this agreement, we may demand, subject to any notice of default and right to cure default required by state law, the entire unpaid balance be paid immediately, and will start a lawsuit for collection of this balance. You agree to pay reasonable attorney’s fees if your account is returned for collection to an attorney who is not our salaried employee. Reasonable attorney’s fees and court costs will be awarded to the prevailing party in any action on this agreement. We also reserve our rights and remedies pertaining to repossession and resale of any repossessed merchandise as provided under applicable law. In response to GECC’s filing of the Re-plevin Suit, the Debtor filed, on April 19, 1991, the instant Motion to Reopen Case and Hold GECC in Civil Contempt (“the Motion”) in this court. In the Motion the Debtor seeks to recover “counsel fees in the amount of $300” and to have this court impose a “fine for civil contempt” payable to the Clerk of Court against GECC in light of its alleged “inappropriate request for attorney’s fees, which resulted in the filing of this motion.” In its Answer to this Motion, GECC stated, inter alia, that “the Debtor, knowing full-well that she was not going to redeem the collateral or reaffirm the debt,” wrongfully “held off the creditor until a discharge was granted.” This action of the Debtor, according to GECC, justified its attempt to recover “special damages” in the Replevin Suit. GECC further points out that the Pennsylvania Rules of Civil Procedure authorize “special damages” in a replevin action. GECC contends that such “special damages” are appropriate compensation to it for the Debtor’s “unlawful” retention of the furniture “from the date which it communicated to the Debtor its desire that goods be returned, that being the date of service of the Motion for Relief from Stay,” on May 14, 1990, to date. Thus, GECC" }, { "docid": "1137686", "title": "", "text": "any monthly interest installments not received by the Note holder within fifteen (15) days after the installment is due ... Significantly, at the January 28, 1991 hearing, Ms. Kavanaugh, testified that both the default rate of interest and the late charges were intended to coerce performance by the debtor. (Transcript of January 28, 1991, p. 20-21). Finally, the Note contains no provision with respect to origination fees. ISSUES There are three related issues before this Court: 1) Whether the Resolution Trust Corporation is entitled to payment of interest at a higher default rate; 2) Whether the Resolution Trust Corporation is entitled to the payment of late charges; and 3) Whether the Resolution Trust Corporation is entitled to the payment of Origination Fees. DISCUSSION 1. The Resolution Trust Company Is Not Entitled To The Payment Of Interest At The Default Rate Since The Provision Is An Unenforceable Penalty. The Bankruptcy Code does not provide for postpetition interest on unsecured or undersecured claims. 11 U.S.C. § 502(b). However, if the claim is overse-cured, (i.e. where the value of the collateral exceeds the debt obligation) the creditor is entitled to postpetition interest to the extent of the security’s value. 11 U.S.C. § 506(b). Pursuant to § 506(b), an overse-cured creditor “shall be allowed ... interest on [its] claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.” Id. Furthermore, the creditor’s claim for interest cannot exceed the excess value of the collateral. Id. Thus, the oversecured creditor may only receive postpetition interest on the value of the collateral exceeding the claim. While the Court must initially look to § 506(b), which allows reasonable fees and costs provided for in an agreement between parties, the ultimate question of whether the disputed fees here are reasonable and allowable is a matter of state law. In re Virginia Foundry, 9 B.R. 493 (D.C.Va.1981); see also Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). A. Under New Jersey Law, The Clause Providing For Default Rate of Interest Is Unenforceable As A Penalty. The" }, { "docid": "9457337", "title": "", "text": "the debtor related to the ultimate claim, regardless of when the harm caused by that behavior became identifiable. Nevertheless, despite the relatively narrow interpretation of “claim” in Frenville, GECC’s claim was a pre-petition liability of the Debtor under even this interpretation because GECC could have sought its “special damages” prior to the Debtor’s bankruptcy filing had GECC chosen to pursue its right to replevin at that time. GECC had a “right to payment” regarding these incidental costs as soon as it had a right to exercise its legal remedies upon the Debt- or’s default. “[W]hen parties agree in advance that one party will indemnify the other party in the event of a certain occurrence, there exists a right to payment, albeit contingent, upon the signing of the agreement.” 744 F.2d at 336. Had GECC taken action, as it could have, prior to the filing of the Debtor’s bankruptcy petition, to collect the underlying debt or to repossess the collateral, and had included therein a claim for costs and “reasonable attorney’s fees,” the claim for incidental costs would clearly have been pre-petition under Frenville regardless of whether it was based on the Debtor’s “unlawful detention” of the collateral, the Contract, or state law applicable to replevin actions. And such claims for such incidental costs would have been dischargeable. The fact that GECC chose not to exercise its remedies immediately following the Debtor’s default should not affect the dis-chargeability of those portions of its claim which constitute personal liabilities of the Debtor. In other words, GECC is arguing that what clearly would have been a claim for pre-petition “damages” in an action brought prior to bankruptcy, or even during bankruptcy if GECC had been granted relief from the automatic stay, is.now a post-petition claim simply because of the timing of the creditor’s action. This position is not supported by the holding in Frenville. To the contrary, the fact that GECC may have been on the verge of pursuing its right to repossess the collateral, including its claim against the Debtor personally for recovery of its “special damages,” may have been one of" }, { "docid": "9457336", "title": "", "text": "nom. M. Frenville Co. v. Avellino & Bienes, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985), the Court of Appeals for the Third Circuit determined that a “right to payment” does not arise until, as a threshold requirement, it may form the basis of a cause of action under state law. Thus, under Frenville, a claim is post-petition if it could not have been brought to court prior to the filing of a debtor’s bankruptcy petition. The Frenville definition of a “claim” affords it a more narrow construction than most courts have been willing to give it. For instance, in Grady v. A.H. Robins Co., Inc., 839 F.2d 198, 202-03 (1988), the Court of Appeals for the Fourth Circuit held that a “claim” arises when those acts which gave rise to the debtor’s liability are performed, not when the harm ultimately caused by those acts becomes evident. Under this analysis, a claim may be “contingent,” but is still considered pre-petition as long as it can be traced back to some pre-petition behavior of the debtor related to the ultimate claim, regardless of when the harm caused by that behavior became identifiable. Nevertheless, despite the relatively narrow interpretation of “claim” in Frenville, GECC’s claim was a pre-petition liability of the Debtor under even this interpretation because GECC could have sought its “special damages” prior to the Debtor’s bankruptcy filing had GECC chosen to pursue its right to replevin at that time. GECC had a “right to payment” regarding these incidental costs as soon as it had a right to exercise its legal remedies upon the Debt- or’s default. “[W]hen parties agree in advance that one party will indemnify the other party in the event of a certain occurrence, there exists a right to payment, albeit contingent, upon the signing of the agreement.” 744 F.2d at 336. Had GECC taken action, as it could have, prior to the filing of the Debtor’s bankruptcy petition, to collect the underlying debt or to repossess the collateral, and had included therein a claim for costs and “reasonable attorney’s fees,” the claim for incidental" }, { "docid": "23411825", "title": "", "text": "Therefore, contractual default rates of interest will generally be enforced between the parties under state law. However, the filing of bankruptcy adds a new dimension to this otherwise two-party dispute. In bankruptcy, multiple creditors are involved, secured and unsecured, each with a valid claim against the debtor. Assuming the assets of the estate are insufficient to satisfy all creditors, distribution requires that priorities of creditors be respected. The existence of a perfected security interest rewards creditors, who have put other parties on notice of their interest in a debt- or’s assets, with priority in distribution. Congress has allowed oversecured creditors to recover interest on their claims, as well as reasonable fees, costs and charges provided for in an underlying agreement, before any other creditor, secured or unsecured, recovers even the principal portion of its claim. 11 U.S.C. § 506(b). Citibank, an oversecured creditor, claims a contractual default rate of interest that it asserts is intended to compensate Citibank for expected and unexpected costs related to the debtor’s default. This default rate is calculated on the principal balance due Citibank, and it is added to its secured claim, together with all late fees assessed for installment payments in default, and attorneys fees. The remaining creditors, secured and unsecured, are likely to receive little or no recovery if Citibank is allowed interest at the default rate of 18.75% on the principal balance outstanding and its other contractual fees, costs and charges. The court must therefore determine whether application of the contractual default rate to the debt of Consolidated Properties, in addition to the other fees, charges, and costs provided for in Citibank’s loan agreement, is reasonable under these circumstances. Bankruptcy courts are divided over the application of contractual default rates of interest. When the rate is within an acceptable range some courts have argued that no federal authority exists to even engage in a reasonableness inquiry. E.g., In re Schaumburg Hotel Owner Ltd. Partnership, 97 B.R. 943, 951 (Bankr. N.D.Ill.1989) (enforcing a 19% default rate rather than 14.7% pre-default contract rate); Skyler Ridge, 80 B.R. 500, 511 (14.-75% default rate applied instead" }, { "docid": "6658240", "title": "", "text": "held that because the sales did not take place pursuant to a plan of reorganization, the obligation to the Bank was not “cured.” Without a legal cure, the court concluded that the Bank was entitled to attorneys’ fees and interest at the default rate. An evidentiary hearing was held on April 24, 1995, to determine the propriety of the default interest .rate and the Bank’s attorneys’ fees. The court found the interest and fees reasonable and ordered them paid. The debtor timely appealed the court’s order. The debtor asserts that payment to the Bank constitutes a cure regardless of whether it occurs outside of, or pursuant to, a plan of reorganization. As such, the debtor claims that default interest is not owing because a cure nullifies all consequences of default, including the increased interest rate. The debtor further argues that equity demands that the court disallow the higher rate in this instance. ISSUES 1) Whether a defaulted obligation to an oversecured creditor is cured in Chapter 11 where the creditor receives a return of principal plus interest at the pre-default rate after a sale of the collateral pursuant to § 363. 2) Whether equity requires that the pre-default rate of interest be imposed in order to allow for a distribution to the debtor. STANDARD OF REVIEW Whether a cure can occur pursuant to a sale under § 363 is a question of statutory interpretation and is reviewed de novo. In re Southeast Company, 81 B.R. 587 (9th Cir. BAP 1987), aff'd, 868 F.2d 335 (9th Cir.1989). A trial court’s findings of fact are reviewed under the clearly erroneous standard. In re Johnston, 49 F.3d 538 (9th Cir.1995). DISCUSSION Relationship of State and Federal Law A creditor is not entitled to postpetition interest under the Bankruptcy Code unless it is oversecured. 11 U.S.C. § 506(b). Even where interest payments are appropriate, however, neither the Code nor the applicable legislative history indicate what the rate should be. We note that, as a rule, bankruptcy courts apply state law when analyzing a debt- or’s interest in property. Butner v. United States, 440 U.S." } ]

[ { "docid": "4128284", "title": "", "text": "given merger is so beneficial to the convenience and needs of the community to be served that it would be in the public interest to permit it. The Supreme Court acknowledged that such a balancing process was contemplated by Congress in United States v. First City National Bank of Houston, 386 U.S. 361, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967), and discussed the balancing process further in United States v. Third National Bank in Nashville, 390 U.S. 171, 88 S.Ct. 882, 19 L.Ed.2d 1015 (1968): It is plain that Congress considered both competition in commercial banking and satisfaction of “the convenience and needs of the community” to be in the public interest. It concluded that a merger should be judged in terms of its overall effect upon the public interest. If a merger posed a choice between preserving competition and satisfying the requirements of convenience and need, the injury and benefit were to be weighed and decision was to rest on which alternative better served the public interest. The necessity of choosing is most clearly posed where the proposed merger would create an institution with capabilities for serving the public interest not possessed by either of the two merging institutions alone and where the potential could be realized only through merger. 390 U.S. at 185-186, 88 S.Ct. at 891. Both United States District Courts which have ruled on bank mergers since the passage of BMA-66 have followed the two-stage determination process contemplated by that Act and as discussed in the Supreme Court decisions subsequent thereto. In United States v. Crocker Anglo National Bank, 277 F. Supp. 133 (N.D.Calif.1967), the Court first discussed the anti-competitive effects of the proposed merger and found none. But the Court went on to take up the convenience and needs question, first assuming the presence of anti-competitive effects, and then balancing such anti-competitive effects against the public interest inherent in the convenience and needs of the community served by the proposed merger. In United States v. Provident National Bank, 280 F.Supp. 1 (E.D.Pa.1968), the Court found that the proposed merger had anti-competitive effects violative of Section" } ]

[ { "docid": "8973165", "title": "", "text": "Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919). . United States v. Phillipsburg Nat’l Bank, 399 U.S. 350, 90 S.Ct. 2035, 26 L.Ed.2d 658 (1970) ; United States v. Third Nat’l Bank, 390 U.S. 171, 88 S.Ct 882, 19 L.Ed.2d 1015 (1968) ; United States v. First Nat’l Bank & Trust Co., 376 U.S. 665, 84 S.Ct. 1033, 12 L.Ed.2d 1 (1964) ; United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963) ; United States v. Provident Nat’l Bank, 280 F.Supp. 1 (E.D.Pa. 1968) ; United States v. Manufacturers Hanover Trust Co., 240 F.Supp. 867 (S.D.N.Y.1965). . See also United States v. Falstaff Brewing Corp., 410 U.S. 526, 93 S.Ct. 1096, 35 L.Ed.2d 475 (1973) ; United States v. Idaho First Nat’l Bank, 315 F.Supp. 261 (D.C.Idaho 1970) ; United States v. First Nat’l Bank, 310 F.Supp. 157 (D.C.Md. 1970) ; United States v. First Nat’l Bank, 301 F.Supp. 1161 (S.D.Miss.1969) ; United States v. Crocker-Anglo Nat’l Bank, 277 F.Supp. 133 (N.D.Cal.1967). . See 12 U.S.O. § 36(c) ; 1963 C.R.S. § ' 14-3-1. . Semite v. Enid Automobile Dealers Association, 456 F.2d 1361 (10th Cir. 1972) ; Food Basket, Inc. v. Albertson’s, Inc., 383 F.2d 785 (10th Cir. 1967). . Depositions available to the court included those of both Clark and Knoll, Roger D. Knight, Jr., Norman M. Dean, Kent Olin, a loan officer of United Bank of Denver, and' Jack N. Greenman, the president of Flour Mills of America, Inc." }, { "docid": "5611362", "title": "", "text": "Cuban-American Sugar Co., D.C.S.D.N.Y.1957, 152 F.Supp. 387, affirmed, 2 Cir., 1958, 259 F.2d 524. In General Foods Corp. v. FTC, 386 F.2d 936, 940 (3d Cir. 1967), the Court noted: Section 7 of the Clayton Act prohibits any merger which may substantially lessen competition or tend toward monopoly “in any line of commerce.” Prohibition of a merger depends, not upon the form it assumes, but upon the realities of the market in which the merged companies operate. Federal Trade Commission v. Procter & Gamble Co. (hereinafter “Clorox”) 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967); Reynolds Metals Co. v. Federal Trade Commission, 114 U.S. App.D.C. 2, 309 F.2d 223 (1962). The fact that different products may in some sense be competitive with each other is not sufficient to place them in the same market if by themselves they constitute distinct product lines. United States v. Aluminum Co. of America (Alcoa-Rome Cable), 377 U.S. 271, 84 S.Ct. 1283, 12 L.Ed.2d 314 (1964). Nor does the availability of substitute products compel the conclusion that they belong in the same relevant market. United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957), Reynolds Metals Co. v. Federal Trade Commission, supra. In Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962), the Supreme Court addressed itself to the task of clarifying some of the uncertainty surrounding the concept of relevant market. There, the Court said: “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for anti-trust purposes. United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 593-595, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s" }, { "docid": "3888662", "title": "", "text": "— are to be determined de novo by the courts using the identical standards which the regulatory agency, here the Comptroller, is directed by 12 U.S.C. § 1828 to apply. See also Nashville, supra, 390 U.S. at 178, 88 S.Ct. 828. Both section 7 and the 1966 Act (see 12 U.S.C. § 1828(c) (5) (B)) speak of mergers whose effect “may be substantially to lessen competition” (emphasis supplied). The word “may” connotes reasonable probability, see United States v. E. I. duPont de Nemours & Co., 353 U.S. 586, 607, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957), not an “ephemeral possibility].” Brown Shoe, supra, 370 U.S. at 323, 82 S.Ct. 1502. The “reasonable probability” standard has been applied to the banking industry by the Supreme Court in Lexington and in Philadelphia prior to congressional action in the Bank Merger Act of 1966, and has since been so applied by that Court in Houston and Nashville as well as by federal district courts in United States v. Phillipsburg National Bank and Trust Company, 306 F.Supp. 645 (D.N.J.1969); United States, v. First National Bank of Jackson, 301 F.Supp. 1161 (S.D.Miss.1969); United States v. Provident National Bank, 280 F.Supp. 1 (E.D.Pa.1968); and United States v. Crocker-Anglo National Bank, 277 F.Supp. 133 (N.D.Cal.1967). There is no requirement that “the [reasonably probable] anticompetitive power manifest itself in anticompetitive action” before section 7 can be called into play. Federal Trade Commission v. Procter & Gamble Co., 386 U.S. 568, 577, 87 S.Ct. 1224, 1229, 18 L.Ed.2d 303 (1967) (sometimes referred to as Clorox). All that is needed are objective indications of reasonably probable anti-competitive effect, see United States v. Penn-Olin Chemical Co., 378 U.S. 158, 174-175, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964); United States v. Wilson Sporting Goods Co., 288 F.Supp. 543, 560 (N.D.Ill.E.D.1968), though subjective indications of expected effect are sometimes significantly present and, if they are so present, are of course important. See United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964). In Nashville, supra, the proposed merger would have joined the second and the" }, { "docid": "5611363", "title": "", "text": "belong in the same relevant market. United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957), Reynolds Metals Co. v. Federal Trade Commission, supra. In Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962), the Supreme Court addressed itself to the task of clarifying some of the uncertainty surrounding the concept of relevant market. There, the Court said: “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for anti-trust purposes. United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 593-595, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes and specialized vendors.” * * * [Emphasis supplied by the Court in General Foods.] See also Crown Zellerbach Corp. v. FTC, 296 F.2d 800, 814-15 (9th Cir. 1961), cert. denied, 370 U.S. 937, 82 S.Ct. 1581, 8 L.Ed.2d 807 (1962); B. Bock, Mergers and Markets, A Guide to Economic Analysis of Case Law 87 (3d ed. 1964); B. Bock, Mergers and Markets, An Economic Analysis of Case Law 27 (1960). Application of the Brown Shoe criteria to the facts established in this case leads to the conclusion that Pargas has successfully demonstrated a strong probability of success in establishing at trial that LP-gas constitutes a relevant product market for purposes of section 7 of the Clayton Act. Despite the fact that fuels such as wood, coal, fuel oil, natural gas and electricity are to some greater or lesser extent functionally interchangeable with LP-gas, there is evidence in this record to indicate that because of the unique characteristics of LP-gas, certain" }, { "docid": "8973164", "title": "", "text": "the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a maternal fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” . Fortner Enterprises v. United States Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969). . “In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919). . United States v. Phillipsburg Nat’l Bank, 399 U.S. 350, 90 S.Ct. 2035, 26 L.Ed.2d 658 (1970) ; United States v. Third Nat’l Bank, 390 U.S. 171, 88 S.Ct 882, 19 L.Ed.2d 1015 (1968) ; United States v. First Nat’l Bank & Trust Co., 376 U.S. 665, 84 S.Ct. 1033, 12 L.Ed.2d 1 (1964) ; United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963) ; United States v. Provident Nat’l Bank, 280 F.Supp. 1 (E.D.Pa. 1968) ; United States v. Manufacturers Hanover Trust Co., 240 F.Supp. 867 (S.D.N.Y.1965). . See also United States v. Falstaff Brewing Corp., 410 U.S. 526, 93 S.Ct. 1096, 35 L.Ed.2d 475 (1973) ; United States v. Idaho First Nat’l Bank, 315 F.Supp. 261 (D.C.Idaho 1970) ; United States v. First Nat’l Bank, 310 F.Supp. 157 (D.C.Md. 1970) ; United States v. First Nat’l Bank, 301 F.Supp. 1161 (S.D.Miss.1969) ; United States v. Crocker-Anglo Nat’l Bank, 277 F.Supp. 133" }, { "docid": "689356", "title": "", "text": "submarket in which an adverse competitive effect may result from an acquisition. See: Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). In United States v. Pabst Brewing Co., 384 U.S. 546, 86 S.Ct. 1665, 16 L.Ed.2d 765 (1966), the United States Supreme Court elaborated on this definition as follows: Congress did not seem to be troubled about the exact spot where competition might be lessened; it simply intended to outlaw mergers which threatened competition in any or all parts of the country. Proof of the section of the country where the anticompetitive effect exists is entirely subsidiary to the crucial question in this and every § 7 case which is whether a merger may substantially lessen competition anywhere in the United States. 384 U.S. at 549, 550, 86 S.Ct. at 1668. In United States v. Philadelphia National Bank, 374 U.S. 321, 357, 83 S.Ct. 1715, 1738, 10 L.Ed.2d 915 (1963), the Court held that, in the context of the case before it, “the proper question to be asked ... is not where the parties to the merger do business or even where they compete, but where within the area of competitive overlap, the effect of the merger on competition will be direct and immediate.” As a general rule, however, “any section of the country” does encompass “the market area in which the seller operates, and to which the purchaser can practicably turn for supplies.” Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 628, 5 L.Ed.2d 580 (1961). The relevant geographic market can be as large as the United States or as small as a single metropolitan area. See: United States v. E. I. Du Pont de Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957), (United States); United States v. Pabst Brewing Co., 384 U.S. 546, 86 S.Ct. 1665, 16 L.Ed.2d 765 (1966), (United States, Wisconsin, Illinois and Michigan combined and Wisconsin alone); United States v. Atlantic Richfield Co., 297 F.Supp. 1061 (S.D. N.Y.1969), aff’d. sub nom., Bartlett v. United States, 401" }, { "docid": "5117098", "title": "", "text": "purpose or intent with which it was conceived, or (2) the power it creates and the attendant purpose or intent.’ ” . Id. 334 U.S. at 527-28, 68 S.Ct. at 1124. . Id at 523-24, 68 S.Ct. at 1122. . Philadelphia Bank, 374 U.S. at 340, 83 S.Ct. 715; see also Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 741 (2d Cir. 1953) (Hamilton Watch); United States v. Bethlehem Steel Corporation, 168 F.Supp. 576, 582 (S.D.N. Y.1958). . An exception is United States v. First National Bank & Trust of Lexington, 376 U.S. 665, 669-70, 84 S.Ct. 1033, 12 L.Ed.2d 1 (1964) (Lexington Bank) which went to a horizontal merger. . See, e. g., Brown Shoe Co., Inc. v. United States, 370 U.S. 294, 328, 333, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962) (Brown Shoe). . Lexington Bank, 376 U.S. at 672, 84 S.Ct. 1033; Philadelphia Bank 374 U.S. at 342 n. 20, 83 S.Ct. 1715; United States v. Third National Bank in Nashville, 390 U.S. 171, 181, 88 S.Ct. 882, 19 L.Ed.2d 1015 (1968) (Nashville Bank); Manufacturers Hanover. See also Tampa Electric Co. v. Nashville Co., 365 U.S. 320, 328, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961) (Tampa Electrie) and Areeda, Antitrust Analysis (1967 ed.), ¶1623. . Columbia Steel, 334 U.S. at 523, 525, 527-30, 68 S.Ct. 1107. . Ibid. . Jerrold Electronics. See also Independent Iron Works, Inc. v. U. S. Steel Corp., 322 F.2d 656 (9th Cir. 1963); Dipson Theatres, Inc. v. Buffalo Theatres, Inc., 190 F.2d 951 (2d Cir. 1951), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 691 (1952). . See United States v. Kimberly-Clark Corp., 264 F.Supp. 439, 448 (N.D.Cal.1967) (Kimberly-Clark), citing United States v. Pennzoil Co., 252 F.Supp. 962, 984 (W.D.Pa.1965). . Exhibit B, Post-Remand Order # 3, supra. . Standard Oil of California v. United States, 337 U.S. 293, 314, 69 S.Ct. 1051, 93 L.Ed. 1371 (1949) (Standard Stations). . Brown Shoe, 370 U.S. at 323-24, 82 S.Ct. 1502. See also United States Steel Corp. v. FTC, 426 F.2d 592, 599 (6th Cir. 1970) (U. S. Steel v." }, { "docid": "14507029", "title": "", "text": "taken place. If so, plaintiff contends the refusal of the Board of Governors to grant such a franchise is a violation of section 1 of the Sherman Act. NO SHOWING OF SECTION 1 VIOLATION In applying either section 1 or section 2, inquiry must first be made as to the relevant market, and the court must determine whether the trade or commerce within that market is affected by the alleged restraints. American Aloe Corp. v. Aloe Creme Laboratories, Inc., 420 F. 2d 1248, 1256 (7th Cir. 1970); Mercantile National Bank of Chicago v. Quest, Inc., 303 F.Supp. 926, 934 (N.D.Ind. 1969). In the leading case discussing relevant product market, United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 395, 76 S.Ct. 994, 1007, 100 L.Ed. 1264 (1956), the Supreme Court said: “The varying circumstances of each case determine the result. In considering what is the relevant market for determining the control of price and competition, no more definite rule can be declared than that commodities reasonably interchangeable by consumers for the same purposes make up that ‘part of the trade or commerce’, monopolization of which may be illegal.” (Footnote omitted.) In Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962), the Court noted: “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593-595 [77 S.Ct. 872, 1 L.Ed.2d 1057]. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” (Footnotes omitted.) With these standards in mind let us examine the uncontroverted facts before us. The plaintiff is the" }, { "docid": "8676512", "title": "", "text": "necessary predicate to finding a violation of § 7 of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition “within the area of effective competition.” Brown Shoe Co. v. United States, 370 U.S. 294, 324, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962); United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957). The area of effective competition is defined in terms of a product market and a geographic market. Brown Shoe, supra, 370 U.S. at 324, 82 S.Ct. at 1502; Crown Zellerbach Corp. v. F. T. C., 296 F.2d 800, 804 (9th Cir. 1961), cert. denied 370 U.S. 937, 82 S.Ct. 1581, 8 L.Ed.2d 807 (1962). The same inquiries regarding the relevant market must, therefore, be undertaken in actions charging violation of § 2 of the Sherman Act since there is “no reason to differentiate between ‘line’ of commerce in the context of the Clayton Act and ‘part’ of commerce for purposes of the Sherman Act.” United States v. Grinnell Corp., supra, 384 U.S. at 573, 86 S.Ct. at 1705; Case-Swayne Co., supra, 369 F.2d at 454. In the present case, the lower court held, and it was not disputed on appeal, that the relevant geographic market is a national one. Controversy arises, however, in connection with the definition of the relevant product market. The Supreme Court has recognized that “[t]he ‘market,’ as most concepts in law or economies, cannot be measured by metes and bounds . . . . For every product, substitutes exist. But a relevant market cannot meaningfully encompass that infinite range.” Times Picayune Publishing Co. v. United States, 345 U.S. 594, 611, 612 n. 31, 73 S.Ct. 872, 881, 882, 97 L.Ed. 1277 (1953). Nor, however, is it proper to read the Sherman Act “to require that products be fungible to be considered in the relevant market.” United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 394, 76 S.Ct. 994, 1006, 100 L.Ed. 1264 (1956). Therefore, “[i]n defining the product market between" }, { "docid": "19304039", "title": "", "text": "production is high, cross-elasticities of supply will* also be high, and again the two commodities in question should be treated as part of the same market. While the majority of the decided cases in which the rule of reasonable interchangeability is employed deal with the “use” side of the market, the courts have not been unaware of the importance of substitutability on the “production” side as well. Brown Shoe Co. v. United States, 370 U.S. 294, 325 n. 42 [82 S.Ct. 1502, 8 L.Ed.2d 510] . . . (1962); United States v. Columbia Steel Co., 334 U.S. 495, 510-11 [68 S.Ct. 1107, 92 L.Ed. 1533] . . . (1948). [Emphasis by the court.] See also, Greyhound Computer Corp., Inc. v. International Business Machines Co., 559 F.2d 488, 493 n. 4 (9th Cir. 1977), cert. denied, 434 U.S. 1040, 98 S.Ct. 782, 54 L.Ed.2d 790 (1978). The two important factors to consider in defining the relevant product market are, therefore, substitutability in the use and substitutability in production of commodities. In United States v. Grinnell Corp., supra, 384 U.S. at 572, 86 S.Ct. at 1704, the Supreme Court indicated that “[i]n § 2 cases under the Sherman Act, as in § 7 cases under the Clayton Act (Brown Shoe Co. v. United States, 370 U.S. 294, 325 [82 S.Ct. 1502, 8 L.Ed.2d 510] . . .) there may be submarkets that are separate economic entities.” In Brown Shoe Co. of United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962), the Supreme Court discussed submarkets: The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593-595, 77 S.Ct. 872, 1 L.Ed.2d 1057 ... The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a" }, { "docid": "12452034", "title": "", "text": "of their formation. TOTAL DEPOSITS HELD BY BANK HOLDING COMPANIES IN COLORADO AS OF JUNE 1970 (Dollar amounts In thousands) Amount % Of BANK GROUP Colorado WESTERN BANCORPORATION (operating three banks in Denver, Englewood and Fort Collins) $ 197,858 5.2 FIRST COLORADO BANKSHARES (formation approved, 11/16/61) (operating four banks In Denver, Englewood and Wheat Ridge) 120,378 3.1 UNITED BANKS OF COLORADO, INC. (formation approved, 11/7/63) (operating nine banks In Denver, Aurora, Boulder, Greeley, Littleton, Fort Collins, Lakewood, Pueblo and Grand Junction) 565,486 14.8 COLORADO CNB BANKSHARES (formation approved, 11/29/67) (operating five banks In Denver, Lakewood and Glenwood Springs) 281,327 7.3 FIRST NATIONAL BANCORPORATION, INC. (formation approved, 5/27/68) (operating four banks In Denver, Southglenn, Bear Valley and Northglenn) 495,675 12.9 AFFILIATED BANKSHARES, INC. (formation approved, 12/31/69) (operating 13 banks In Colorado Springs, Fort Carson, Manltou Springs, Loveland, Greeley, Ault, Boulder, Lafayette and Louisville) 260,176 6.8 CENTRAL COLORADO BANCORPORATION (formation approved, 3/31/70) (operating three banks in Colorado Springs and Rocky Ford) 36,012 _09 $1,956,912 51.1 Compiled from plaintiff's Exhibits 113 and 115. . Brown Shoe Co. v. United States, 370 U.S. 294, 324, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962), quoting from United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957). . Brown Shoe Co. v. United States, 370 U.S. 294, 324, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962). . United States v. Idaho First National Bank, 315 F.Supp. 261, 267-268 (D.Idaho 1970) ; United States v. First National Bank of Maryland, 310 F.Supp. 157, 168 (D.Md.1970) ; United States v. First National Bank of Jackson, 301 F.Supp. 1161, 1181 (S.D.Miss.1969) ; United States v. Crocker-Anglo National Bank, 277 F.Supp. 133, 151-153 (N.D.Cal.1967). . United States v. First National Bank of Jackson, 301 F.Supp. 1161 (S.D.Miss. 1969) ; United States v. Idaho First National Bank, 315 F.Supp. 261 (D.Idaho 1970) ; United States v. First National Bank of Maryland, 310 F.Supp. 157 (D.Md.1970) ; United States v. Crocker-Anglo National Bank, 277 F.Supp. 133 (N.D.Cal. 1967). . Even if it can be said that when the price of" }, { "docid": "7238407", "title": "", "text": "502, 55 L.Ed. 619 (1911). This normally requires consideration of (1) the product market or line of commerce and the geographic market or area of effective competition, and (2) the impact of the arrangement on competition. Tampa Electric Co. v. Nashville Coal Co., supra, 365 U.S. at 327, 81 S.Ct. 623; United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 593, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957); Standard Oil of California v. United States, 337 U.S. 293, 299 n. 5, 69 S.Ct. 1051, 93 L.Ed. 1371 (1949). In Tampa, supra, the Court held that for purposes of analyzing an exclusive dealing agreement under § 3, the relevant market is not the supplier’s own market, but the broader area in which his competitors operate. This plaintiffs have completely failed to identify, a shortcoming which would in itself require dismissal. See United States v. E. I. Du Pont De Nemours Co., supra, 353 U.S. at 593, 77 S.Ct. 872; United States v. Chas. Pfizer & Co., 246 F.Supp. 464 (E.D.N.Y.1965). However, since it is clear that the relevant market here encompasses at least the newspaper home delivery market in the New York City Metropolitan area, Mytinger & Casselberry, Inc. v. F. T. C., 112 U.S.App.D.C. 210, 301 F.2d 534 (1962); Cf. United States v. Columbia Steel Co., 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533 (1948), I have decided to overlook this defect. Once the area of effective competition has been defined, an analysis must be made to determine if the effect of the arrangement “may be to substantially lessen competition or to create a monopoly” in this market. Brown Shoe Co. v. United States, 370 U.S. 294, 328, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962); Tampa Electric Co. v. Nashville Coal Co., supra, 365 U.S. at 328, 81 S.Ct. 623 (1961). The crucial inquiry is whether the opportunity for other competitors to enter or remain in the market has been significantly limited, Tampa Electric Co. v. Nashville Coal Co., supra, 221 U.S. at 328, 81 S.Ct. 623; Standard Oil Co. of California v. United" }, { "docid": "12452035", "title": "", "text": "United States, 370 U.S. 294, 324, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962), quoting from United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957). . Brown Shoe Co. v. United States, 370 U.S. 294, 324, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962). . United States v. Idaho First National Bank, 315 F.Supp. 261, 267-268 (D.Idaho 1970) ; United States v. First National Bank of Maryland, 310 F.Supp. 157, 168 (D.Md.1970) ; United States v. First National Bank of Jackson, 301 F.Supp. 1161, 1181 (S.D.Miss.1969) ; United States v. Crocker-Anglo National Bank, 277 F.Supp. 133, 151-153 (N.D.Cal.1967). . United States v. First National Bank of Jackson, 301 F.Supp. 1161 (S.D.Miss. 1969) ; United States v. Idaho First National Bank, 315 F.Supp. 261 (D.Idaho 1970) ; United States v. First National Bank of Maryland, 310 F.Supp. 157 (D.Md.1970) ; United States v. Crocker-Anglo National Bank, 277 F.Supp. 133 (N.D.Cal. 1967). . Even if it can be said that when the price of coal (for example) arises high enough, coal users will switch to oil (cross-elasticity), the cost and inconvenience of doing so would normally place enough of an external (nonprice) limitation on the demand behavior of coal users that coal and oil will nevertheless continue to exist in separate product markets. On the other hand, if the cost and inconveience of switching from one type of coal to another type of coal has a relatively insignificant effect on the demand behavior of coal users, the two different types of coal will, in all likelihood, continue to exist in the same product market, . We refer to the statement in United States v. Philadelphia National Bank, 374 U.S. 321, 356, 83 S.Ct. 1715, 1737, 10 L.Ed.2d 915 (1963), wherein the Court said: We agree with the District Court that the cluster of products (various kinds of credit) and services (such as checking accounts and trust administration) denoted by the term “commercial banking,” * * * composes a distinct line of commerce. Some commercial banking products or services are" }, { "docid": "12452021", "title": "", "text": "First, does correspondent banking (or what plaintiff refers to as a “full package of correspondent banking services”) constitute an appropriate “line of commerce” or product market within which to measure the substantiality of any alleged foreclosure? Second, whether the State of Colorado is an appropriate section of the country or “relevant geographic market” within which to measure the substantiality of any alleged market foreclosure? Third, taking into account the appropriately defined market, will the acquisition and resulting foreclosure substantially lessen competition in the geographically defined product market within the meaning of Section 7 of the Clayton Act? A. CORRESPONDENT BANKING AS A “LINE OF COMMERCE” Since the competitive aspect is the main concern under the antitrust laws, the market must be defined in terms of the product or line of products with respect to which there is competition. As stated in Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962): The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. Thus, the issue is whether, in the banking industry in Colorado (or the otherwise relevant geographic market), the various correspondent banking services compete with each other within one product market, or whether they form various more or less distinct, product markets? In order to answer this question, an examination of the economic nature of correspondent banking generally and as specifically set forth in the evidence in this case is necessary. The legal standard for determining the existence, for antitrust purposes, of a line of commerce appears to be that set forth in Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1524, 8 L.Ed.2d 510 (1962). If commercial banking generally is to be considered a broad line of commerce which includes correspondent banking, * * * within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593-595, 77" }, { "docid": "22266254", "title": "", "text": "(1973); United States v. Idaho First National Bank, 316 F. Supp. 261 (Idaho 1970); United States v. First National Bank of Maryland, 310 F. Supp. 157 (Md. 1970); United States v. First National Bank of Jackson, 301 F. Supp. 1161 (SD Miss. 1969); United States v. Crocker-Anglo National Bank, 277 F. Supp. 133 (ND Cal. 1967) (three-judge court). See Robinson, supra, at 189 n. 162; Shenefield, Annual Survey of Antitrust Developments — The Year of the Regulated Industry, 31 Wash. & Lee L. Rev. 1, 37-39 (1974); Hale & Hale, supra, at 179. This Court’s potential-competition cases have repeatedly noted this factor. E. g., FTC v. Procter & Gamble Co., 386 U. S., at 580; United States v. Continental Can Co., 378 U. S., at 464-465. See J. Bain, Industrial Organization 8 (2d ed. 1968): “The condition of entry . . . determines the relative force of potential competition as an influence or regulator on the conduct and performance of sellers already established in a market.” See also P. Areeda, Antitrust Analysis 517 (1967): “The sight of a particular firm ‘waiting at the market’s edge’ may emphasize the entry threat, but it is ease of entry, not necessarily an identifiable potential entrant, that limits present market power by reminding existing firms that high profits will attract outsiders.” Philadelphia National Bank, 374 U. S., at 375 (Harlan, J., dissenting). The marketing of many forms of commercial bank services is controlled by government regulation. For example, regulation, not concentration in a banking market, produces parallelism with respect to such important elements of the banking business as interest allowed on savings accounts and interest charged on home mortgage loans. There are also many individualized judgments in the banking business, such as the decision whether to extend credit in various cases, that are not prone to parallel behavior regardless of the concentration of a market. Nevertheless, unfettered competition among banks does exist in a number of areas important to the public, as evidenced by the much-advertised differences in various forms of services offered by banks within the same geographic market. It is with regard" }, { "docid": "3642509", "title": "", "text": "the residential market. In contrast, Stanley’s 1965 sales in the cabinet hardware industry totalled $814,000 or only 1% of the cabinet hardware market. More crucial, however, is the fact that only $200,000 of this figure, was derived from the residential market; the remaining $614,000 stemmed from architectural cabinet hardware sales. Even these low figures do not accurately reflect Stanley’s minimal competitive impact. Stanley owned no die-casting machinery- — a sine qua non for full scale activity in the residential market. Several of its attempts to expand its share of the residential market had failed, giving it a poor reputation with distributors of residential hardware (i. e., Full Line Wholesalers, National Accounts, Specialty Wholesalers, and Residential OEM’s). In fact, Stanley’s sales in the cabinet hardware market were on decline. Thus, within the boundaries of the cabinet hardware market, which mark the outer limits of the “area of effective competition” under review, Brown Shoe Co. v. United States, 370 U.S. 294, 324, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962) (quoting from United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 593, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957), Stanley was definitely not. a significant competitive force. To determine whether the joinder of the market shares held by Stanley and Amerock posed an anticompetitive threat one must look beyond wooden percentage figures to live economic realities in the market itself, including such indicia as “reasonable interchangeability of use or the cross-elasticity o.f demand between the product itself and substitutes for it . the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962). Applying these practical criteria, the record is clear that the percentage of actual competitive overlap between Stanley and Amerock prior to the merger was far less than Stanley’s 1% of the overall cabinet hardware market. Stanley’s sales of residential cabinet hardware, $200,000 out of total residential cabinet hardware sales of approximately $70,000,000, amounted to about % of 1%" }, { "docid": "4641152", "title": "", "text": "evidence that HCA’s acquisitions of Wesley, HCP or New Century, individually or as a group, will “substantially lessen competition” in violation of that statute. Vertical integration is not an unlawful or even suspect category under the antitrust laws. Jack Walters & Sons Corp. v. Morton Building, Inc., 737 F.2d 698, 710 (7th Cir.1984). Consequently, vertical mergers will not be condemned under § 7 in the absence of facts tending to show the merger will result in a foreclosure of access to sources of supply, a significant increase in concentration in a relevant market, or heightened barriers to entry in either market. See Ford Motor Co. v. United States, 405 U.S. 562, 92 S.Ct. 1142, 31 L.Ed.2d 492 (1972). The mere possibility a merger might have anticompetitive effects does not satisfy the statutory requirement of § 7. United States v. E.I. du Pont de Nemours & Co., 353 U.S. 586, 590-93, 77 S.Ct. 872, 875-77, 1 L.Ed.2d 1057 (1957). Rather, to avoid summary judgment it is a plaintiff’s burden to produce evidence which shows a reasonable probability that anticompetitive effects will, in fact, occur. Brown Shoe Co. v. United States, 370 U.S. 294, 323, 82 S.Ct. 1502, 1522, 8 L.Ed.2d 510 (1962); United States v. First Nat’l Bank of Maryland, 310 F.Supp. 157, 161 (D.Md.1970). HCA’s acquisitions do not create any actual or probable horizontal anticompetitive effects. The undisputed facts demonstrate HCA’s acquisitions of Wesley and HCP have resulted in no structural changes in the hospital services or health care financing markets in Wichita. Prior to Wesley’s acquisition, there were four independently owned hospitals in Wichita; today all four of those hospitals are still operating independently. If anything, Wesley — the largest hospital both before and after the acquisition — has lost market share following its affiliation with HCA. (Tran. 23, pp. 3860-61; Pltfs.’ Ex. 507-A.) Similarly, the acquisition of HCP did not result in a reduction in the number of health care financing entities doing business in Wichita; in fact, that number has increased since the acquisition with the reintroduction of BCBSK’s HMO through Kansas Health Plans, the reintroduction of" }, { "docid": "12216677", "title": "", "text": "cases hold plaintiff has the burden of proof to show by a preponderance of evidence that in reasonable probability the merger may substantially lessen competition and defendants have the burden of proving the merger will provide greater and better bank services meeting the needs and requirements of the community that clearly outweigh in the public interest any anticompetitive effects that may result from the merger. All national bank merger cases decided since 1963 when Philadelphia, first held bank mergers to be within the Clayton Act, are: United States v. Third National Bank in Nashville, 390 U.S. 171, 88 S.Ct. 882,19 L.Ed.2d 1015 (1968); United States v. First City National Bank of Houston, 386 U.S. 361, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967); United States v. First National Bank & Trust Co. of Lexington, 376 U.S. 665, 84 S.Ct. 1033, 12 L.Ed.2d 1 (1964); United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963); United States v. First National Bank of Maryland, 310 F.Supp. 157 (D.Md. 1970); United States v. Phillipsburg National Bank & Trust Co., 306 F.Supp. 645 (D.N.J.1969); United States v. First National Bank of Jackson, 301 F.Supp. 1161 (S.D. Miss.1969); United States v. Provident National Bank, 280 F.Supp. 1 (E.D.Pa.1968); United States v. Crocker-Anglo National Bank, 277 F.Supp. 133 (N.D. Cal.1967); United States v. Manufacturers Hanover Trust Co., 240 F.Supp. 867 (S.D.N.Y.1965). Of these only Nashville and Houston are Supreme Court decisions since enactment of BMA 1966. Every cited ease dealt with a merger of banks involving a large city in a heavily populated metropolitan area, excepting only Lexington and Jackson. Fayette County, Kentucky, in which the city of Lexington is located, has about the same area as Twin Falls County; however, a substantial area in south Twin Falls County is mountainous with few residents. At the time Lexington was decided the city of that name had four or five times the present population of Twin Falls city. In facts, Jackson, to a considerable extent, parallels the present case. Holdings therein support some contentions of defendants and intervenor in this case, as" }, { "docid": "15287596", "title": "", "text": "LP is thus germane to the inquiry. United States v. Du Pont & Co., supra, 351 U.S. at 399, 404, 76 S.Ct. at 1009, 100 L.Ed. at 1282. However, Du Pont also makes clear that such factors as price and qualities of the product must be considered. Id., 351 U.S. at 396—404, 76 S.Ct. at 1008, 100 L.Ed. at 1281. The cross-elasticity of supply would seem to be as important as the demand factor in determining relevant product market. Brown Shoe Co. v United States, 370 U.S. 294, 325 n. 42, 336, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510, 535 (1962); Twin City Sportservice, Inc. v. Charles O. Finley & Co., 512 F.2d 1264, 1271 (9th Cir. 1975); Note, Telex v. IBM [510 F.2d 894 (10th Cir. 1975)]: Defining the Relevant Market, 61 Iowa L.Rev. 184, 189, 219-221 (1975). In defining the relevant part of commerce for any product the reality of the marketplace must serve as the lodestar. Brown Shoe Co. v. United States, supra, 370 U.S. at 325, 82 S.Ct. at 1502, 8 L.Ed.2d at 535; Kansas City Star Co. v. United States, 240 F.2d 643, 659-660 (8th Cir.), cert. denied, 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438 (1957). We agree that wood, coal, fuel oil, natural gas and electricity are all functionally interchangeable to a considerable degree with LP in some or all of its major uses. Because of the inferior qualities of wood, coal and fuel oil, however, there does not appear to be a high degree of cross-elasticity of demand between these products and LP. Although there was some testimony, mostly conjectural, that with recent rises in LP prices a few customers may have turned to these sources, most LP dealers testified that these fuels were not competing products even with the change in price. See United States v. Grinnell Corp., supra, 384 U.S. at 573-575, 86 S.Ct. at 1705, 16 L.Ed.2d at 787; International Boxing Club v. United States, 358 U.S. 242, 251-252, 79 S.Ct. 245, 250, 3 L.Ed.2d 270, 277 (1959); American Crystal Sugar Co. v. Cuban-American Sugar Co., 259 F.2d" }, { "docid": "8676511", "title": "", "text": "19 L.Ed.2d 621 (1967). If the first element is absent the analysis need proceed no further. Monopoly power is the power to control prices or exclude competition. United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956); Lessig v. Tidewater Oil Co., 327 F.2d 459, 474 (9th Cir.), cert. denied 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964). Since “size is of course an earmark of monopoly power,” United States v. Griffith, 334 U.S. 100, 107 n. 10, 68 S.Ct. 941, 946, 92 L.Ed. 1236 (1948), the existence of such power ordinarily may be inferred from the predominant share of the market. United States v. Grinnell Corp., supra, 384 U.S. at 571, 86 S.Ct. 1698; Jack Winter, Inc. v. Koratron Co., Inc., 375 F.Supp. 1, 68 (N.D.Cal.1974). Therefore, to determine whether a party has monopoly power it is essential first to define the “relevant market.” Case-Swayne Co., supra, 369 F.2d at 454. Clearly, a determination of the relevant market is a necessary predicate to finding a violation of § 7 of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition “within the area of effective competition.” Brown Shoe Co. v. United States, 370 U.S. 294, 324, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962); United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957). The area of effective competition is defined in terms of a product market and a geographic market. Brown Shoe, supra, 370 U.S. at 324, 82 S.Ct. at 1502; Crown Zellerbach Corp. v. F. T. C., 296 F.2d 800, 804 (9th Cir. 1961), cert. denied 370 U.S. 937, 82 S.Ct. 1581, 8 L.Ed.2d 807 (1962). The same inquiries regarding the relevant market must, therefore, be undertaken in actions charging violation of § 2 of the Sherman Act since there is “no reason to differentiate between ‘line’ of commerce in the context of the Clayton Act and ‘part’ of commerce for purposes of the Sherman Act.”" } ]

[ { "docid": "7724277", "title": "", "text": "may be brought only in the county where the principal place of business of that bank or association is located. They point out that under Title 28'U.S.C. § 1348, all national banking associations are deemed citizens of the states in which they are respectively located for purposes of all actions by or against them other than by the United States. They argue that they do not conduct business in the state of Georgia. They cite unquestionable authority that, at least in the non-bankruptcy context, the venue provisions of Title 12 U.S.C. § 94 are not merely permissive but mandatory. See National Bank of North America v. Associates of Obstetrics and Female Surgery, Inc., 425 U.S. 460, 96 S.Ct. 1632, 48 L.Ed.2d 92 (1976). University National argues that because venue is improper this adversary proceeding against it must be dismissed pursuant to Title 28 U.S.C. § 1406(a). RepublicBank argues that the proceeding against it should either be dismissed or transferred to an appropriate court in Dallas County, Texas. On this difficult venue question, the Court concludes that to the extent that it conflicts with Title 28 U.S.C. § 1471, Title’ 12 U.S.C. § 94 was repealed by the former, which is a later statute having exclusive application in bankruptcy cases under Article I, Section 8 of the Constitution, giving Congress the power to establish uniform laws on that subject throughout the United States. In doing so,' it is not unmindful of the fact that at least four Bankruptcy Courts have reached the opposite conclusion. See In re Associated Transport Inc., 3 B.R. 124 (Bkrtcy.S.D.N.Y.1980); In re Malone, 5 B.R. 658 (Bkrtcy.S.D.Cal.1980); In re Dick & Co., 8 B.R. 358 (Bkrtcy.N.D.Ind.1980); In re Neese, 12 B.R. 968 (Bkrtcy.W.D.Va.1981). It is true-that, as the banks and the above-cited decisions point out, repeals by implication are not favored and may be found only where provisions in the two acts are in irreconcilable conflict or when the later act covers the whole subject of the earlier one and is clearly intended as a substitute. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 96" } ]

[ { "docid": "23419461", "title": "", "text": "Butcher, 46 B.R. 109 (Bkrtcy.N.D.Ga.1985), which discusses (1) factors to determine \"convenience of the parties” and (2) the relationship of the repealed sections to the current section. . See King, Jurisdiction and Procedure Under the Bankruptcy Amendments of 1984, 38 VAND. L.REV. 675 (1985); Sabino, Jury Trials in the Bankruptcy Court, COMM.L.J., Aug.-Sept. 1985, at 342; In re L.A. Clarke and Son, Inc., 51 B.R. 31 (Bkrtcy.D.C.1985); and In re Bokum Re sources Corp., 49 B.R. 854 (Bkrtcy.D.N.Mex. 1985). . There is a direct conflict between the venue provision of the National Bank Act, 28 U.S.C. § 94 and the venue provision of the Bankruptcy Code, 28 U.S.C. §§ 1408-1410, 1412. Similarly, there is a direct conflict between the courts attempting to resolve this question. On one hand, some courts have held that the National Bank Act governs. See In Re James Paul Neese, 12 B.R. 968, 971 (Bkrtcy.W.D.Va.1981), holding that the predecessor sections to 28 U.S.C. § 1408 • et seq. (28 U.S.C. §§ 1472-1477) were general and did not repeal by implication the specific statute 28 U.S.C. § 94. On the other hand, at least one .court has held to the contrary. In Re Dean Ford, Inc., 38 B.R. 4, 6 (Bkrtcy.N.D.Ga.1982), holding that 12 U.S.C. § 94 was repealed by 28 U.S.C. § 1471 but citing In re Associated Transport, Inc., 3 B.R. 124 (Bkrtcy.S.D.N.Y. 1980); In Re Malone, 5 B.R. 658 (Bkrtcy.S.D.Cal.1980); In Re Dick & Co., 8 B.R. 358 (Bkrtcy.N.D.Ind.1980); and In Re James Paul Neese, 12 B.R. 968 (Bankr.W.D.Va.1981), as four cases which have reached opposite results. See also the recent case of Matter of Chuck Harrison Dodge, Inc., 49 B.R. 381 (W.D.Pa.1985); holding the venue provision of 12 U.S.C. § 94 governs over the bankruptcy venue provisions in a preference action against a national bank. As the parties in this case do not press the issue, it is not neccesary to decide the question. This is fortunate in light of the changed venue sections of title 28 of the U.S.Code. . In their September 30, 1985 letter to all unsecured creditors concerning their" }, { "docid": "23419418", "title": "", "text": "many of the witnesses will be from Alabama. The plaintiffs and AmSouth Bank are from Alabama. The trustee is not from Alabama, but the trustee has chosen to deal with Alabama citizens and corporations. In light of this, this court finds that the convenience of witnesses factor weighs against transfer. The L’s/C would be drawn on an Alabama bank, and the fraud, if committed, was against Alabama residents in Alabama. There is nothing to indicate that access to proof would be better in Houston than in Birmingham. If anything, this access would be better in Birmingham. There is also no indication that a fair trial cannot be held in either Alabama or Texas. This being true, this factor does not weigh in favor of transfer. The last and most important factor is that of judicial efficiency. The trustee argues that this factor weighs in favor of transfer. The basis for this argument is that the Houston Bankruptcy Court is already dealing with Tomlinson Interests’ estate and that it is already familiar with this case in that the Houston Bankruptcy Court granted Knostman the authority to enter into the JOA. Also, the trustee points out that litigation in Alabama will be more expensive for the trustee than litigation in Houston. While this court agrees that these factors weigh in favor of transfer, there are also several factors that weigh against transfer. First, at least a portion of the law to be applied in this case is Alabama law. Courts situated in Alabama, whether state or federal, will be more familiar with Alabama law than the Houston Bankruptcy Court, and this should make a judicial proceeding more efficient in Alabama. There is no indicated application of Texas law. Second, the Circuit Court of Jefferson County has already dealt with the substantive issues in this case when it issued the temporary restraining order on October 31, 1985. The Houston Bankruptcy Court has not had occasion to deal with the fraud issue in this case. It would be more judicially efficient to remand this case to the state court than to transfer the case" }, { "docid": "23419421", "title": "", "text": "justice and the convenience of the parties will be better served in Alabama than in Houston. Both the plaintiffs and AmSouth would like this case to be remanded to the Circuit Court of Jefferson County. This case was removed pursuant to 28 U.S.C. § 1452(a). Section 1452(b) of Title 28 states: The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise. Equitable grounds include: (1) forum non conveniens; (2) a holding that, if the civil action has been bifurcated by removal, the entire action should be tried in the same court; (3) a holding that a state court is better able to respond to questions involving state law; (4) expertise of the particular court; (5) duplicative and uneconomic effort of judicial resources in two forums; (6) prejudice to the involuntarily removed parties; (7) comity considerations; and (8) a lessened possibility of an inconsistent result. See Browning v. Navarro, 743 F.2d 1069, 1076 n. 21 (5th Cir.1984). This court is of the opinion that the ends of justice might be better served if this case is remanded to the state court (this being a consideration of forum non conveniens). As discussed before, the state court has already dealt with the merits of this lawsuit when it granted the temporary restraining order. This court has only dealt with the procedural aspects in this case. Therefore, the state court has a “head start” on the merits of this matter which should enable the state court to resolve this matter faster than it could be resolved in this court. This “head start,” however, is only a small head start that by itself would not merit remanding this case. In addition, there is the consideration of comity which weighs in favor of remanding this case. The addition of comity would still not be enough to tip the scales of equity in favor of remanding this" }, { "docid": "23419430", "title": "", "text": "50 B.R. 175, 178 (Bkrtcy.D.N.D.1985). Neither can jurisdiction be found under section 1334(d). Knostman acquired whatever rights he claims in the L/Cs after the Debtor filed its petition in Houston. This Court agrees with Knostman, however, that Plaintiffs’ case is a civil proceeding arising in or related to Debtor’s case under title ll. The Complaint is at least related to the bankruptcy case pending in Houston to which it has a significant connection. If damages are awarded to Plaintiffs, or if Knostman is denied his claimed right to draw on the L/Cs, there will be an impact on the bankruptcy case in Houston. Also, within the meaning of section 1334(b), the Complaint is a civil proceeding arising in the Houston bankruptcy case because it complains of acts and omissions of Knost-man as the trustee appointed by and operating Debtor’s business under orders issued by the Houston Bankruptcy Court. As either a civil proceeding arising in a case under title 11, or a civil proceeding related to a case under title 11, Plaintiffs’ Complaint states a claim or cause of action in a civil action over which the district court is given jurisdiction by section 1334. It was therefore removable from the State Court under section 1452(a). II. What are the practical alternatives under the pending motions for remand, abstention and change of venue? First, the case may be remanded to the Alabama Court under 28 U.S.C. § 1452(b) “on any equitable ground”. This is what Plaintiffs and AmSouth Bank want. Second, it may be transferred to the Houston District Court “in the interest of justice or for the convenience of the parties”. 28 U.S.C. § 1412. This is what Knostman wants. Third, the Birmingham District Court has venue of Plaintiffs’ civil action and could retain it and try it or refer it to the Birmingham Bankruptcy Court for findings of fact and conclusions of law. It would then be returned to the District Court for the entry of a final order or judgment. 28 U.S.C. § 1409(e) and § 157(c)(1). No one wants this. Knostman removed the case to the" }, { "docid": "18748068", "title": "", "text": "the Bankruptcy Code by filing a petition and thereby obtained its benefits, no particular policy reason favors permitting the debtor to insist upon escaping from the watchful eye of the bankruptcy court in the conduct of litigation for the benefit of the estate. Finally, it must be remembered that the solution to the constitutional problem created by the Marathon decision is not found in § 1334(c)(1) or (2). Rather it is found in 28 U.S.C. § 157. Compare In re Environmental Research & Development, Inc. (Trustee v. Resource Dynamics, Inc., et al.), 46 B.R. 774 (D.C.S.D.N.Y.1985). If a court declines to remand under § 1452(b) or to abstain under § 1334(c)(1) or (2), then the court’s conduct of the litigation is governed by the procedures set forth in 28 U.S.C. § 157 for determination of core and non-core proceedings. Plaintiffs and Chemical have argued vigorously over whether or not the State Court Action is a core or non-core proceeding. Compare In re Lion Capital Group (Trustee v. A-Z Associates), 46 B.R. 850 (Bankr.S.D.N.Y.1985). It is unnecessary for this court to determine that issue in view of its holding that § 1334(c)(2) is not applicable. Since this court will conduct no further proceedings in the matter as venue is being transferred it is unnecessary for this court to reach the issue for any other purpose. The venue provision is contained in 28 U.S.C. § 1412. It provides that a case or proceeding may be transferred “in the interest of justice or for the convenience of the parties.” For the reasons set forth above, the interests of justice will be served by a transfer to the District of Illinois, Eastern Division where the 666 Chapter 11 case is pending. See In re Butcher, 46 B.R. 109 (Bankr.N.D.Ga.1985). The convenience of the parties would also appear to be served, but if not the only party, located in New York has requested the transfer. Settle appropriate order. . The parties have styled the caption to include the Chapter 11 case headings even though those cases are no longer pending here. The court has followed" }, { "docid": "23419416", "title": "", "text": "U.S.C. § 1334(b). As pointed out by the Bankruptcy Judge, “if damages are awarded to the Plaintiffs, or if Knostman is denied his claimed right to draw on the L’s/C, there will be an impact on the bankruptcy case in Houston.” See Bankruptcy Judge’s Report, dated January 7, 1986. This “impact,” coupled with the fact that the trustee entered into the post-petition transactions that have given rise to the present action against him in his capacity as trustee of the debtor, is enough support “related to” jurisdiction under 28 U.S.C. § 1334(b). This court also agrees with the Bankruptcy Court that the abstention doctrine need not be considered in this case. Since, this court has decided to remand this case, it is not necessary to consider the abstention issue directly. The trustee would like for this court to transfer this case to the United States Bankruptcy Court for the Southern District of Texas, Houston Division (Houston Bankruptcy Court). Under 28 U.S.C. § 1412, this court can transfer .this case “in the interest of justice or for the convenience of the parties.” (emphasis added). As pointed out by the Bankruptcy Court, the word “and” in old section 1475 was changed to “or” in section 1412. This change should make it easier to meet the requirements necessary for transfer. Factors that should be considered in deciding whether to transfer a case are the convenience of witnesses, the parties’ access to proof, the ability to receive a fair trial, and judicial efficiency. See In re Legend Industries, Inc., 49 B.R. 935, 938 (Bankr.E.D.N.Y.1985). See also, In re Butcher, 46 B.R. 109, 112 (Bankr.N.D.Ga. 1985) (“The most important factor is whether the transfer of the proceeding would promote the economic and efficient administration of the estate.”). Also, the burden of proving appropriateness of transfer of venue of a bankruptcy case is on the party moving for the transfer. Id. In this case, the trustee has not met its burden. The convenience of the witnesses factor weighs against the trustee. Since this case involves letters of credit from an Alabama bank, this court assumes that" }, { "docid": "23419439", "title": "", "text": "change of venue statute, 28 U.S.C. § 1404(a), permits consideration of the “convenience of parties and witnesses” (emphasis supplied), but only the “convenience of the parties” is relevant to the motion to transfer in this bankruptcy case. Accordingly, the convenience of the witnesses Knostman would be required to bring to Birmingham for trial is irrelevant except in the context of the cost to Knost-man. Even though abstention is not considered one of the practical alternatives, 28 U.S.C. § 1334(c) strongly suggests that a case such as this should be tried in a State forum. Plaintiffs’ case is “based upon a State law claim or State law cause of action ... with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section ... and can be timely adjudicated, in a State forum of appropriate jurisdiction.” Section 1334(c)(2) does not actually apply because Plaintiffs’ case is a proceeding “arising in a case under title 11” which is excluded, and because the mandatory abstention provisions of that section were not made effective with respect to cases, such as this one, pending on July 10, 1984, or to proceedings arising in or related to such cases. See section 122(b), Pub.L. No. 98-353, July 10, 1984; and In re Baren, 47 B.R. 39 (Bkrtcy.N.D.Ill.1984), aff'd 48 B.R. 752 (N.D.Ill.1984). The Court may and should exercise its discretion to accomplish by remand the Congressional purpose favoring “comity with State courts or respect for State law.” 28 U.S.C. § 1334(c)(1). In re Atlas Automation, Inc., 42 B.R. 246 (Bkrtcy.E.D.Mich.1984); and In re Dakota Grain Systems, Inc., 41 B.R. 749 (Bkrtcy.D.N.D.1984). The Alabama Court was moving to hear this case on preliminary injunction when it was removed. Without suggesting that the case would not proceed promptly if transferred to Houston, there are several stumbling blocks it would encounter there that would not be experienced on remand to the State Court. The Plaintiffs have demanded and are entitled to a jury trial on some of the issues. This presents no problem in the State Court. It presents" }, { "docid": "7537179", "title": "", "text": "recognized the procedural requirement in 28 U.S.C. § 1452 that civil matters may not be removed interdistrict. That court, however, has not considered the substantive transfer issue pending before this Court. On the other hand, the United States District Court for the Northern District of Alabama has addressed that issue and this Court follows the holding of that court and adopts its reasoning in finding that the motions to transfer pending in the instant case should be denied. In Thomasson v. AmSouth Bank, N.A., 59 B.R. 997 (N.D.Ala.1986) a state court proceeding, that was directly related to a pending Texas bankruptcy case, was removed to the federal court. Rather than transfer the ease automatically to the Texas court, the district court considered the impact on the local proceeding. Writing for the district court, Judge Robert B. Propst stated: Factors that should be considered in deciding whether to transfer a case are the convenience of witnesses, the parties’ access to proof, the ability to receive a fair trial, and judicial efficiency. See In re Legend Industries, Inc., 49 B.R. 935, 938 (Bankr.E.D.N.Y.1985). See also, In re Butcher, 46 B.R. 109, 112 (Bankr.N.D.Ga.1985) (“The most important factor is whether the transfer of the proceeding would promote the economic and efficient administration of the estate.”). Also, the burden of proving appropriateness of transfer of venue of a bankruptcy case is on the party moving for the transfer. Id. Id. at 1000. The defendants’ motions to transfer are the mechanisms that place the issue of whether this Court or the Illinois court is the better court to decide the issues associated with removal, abstention and remand. The Thomasson factors are the criteria this Court has considered in making that determination. If the factors weigh in favor of transfer then this Court must conclude that the Illinois court is the better to decide the remaining issues. If the factors weigh against transfer, then it is this Court that should decide those issues, including the questions of the effect of the parties’ proposed settlement. A. Convenience of Witnesses, Access to Proof and Ability to Receive a" }, { "docid": "23419458", "title": "", "text": "These differences strengthen the conclusion that it is not a matter the bankruptcy court is authorized to hear and determine under section 157(b)(1). If section 157 has any relevance in deciding the motions to remand and transfer, it is to how the case would be handled if it were transferred to Houston. . See discussion of the use of the words \"case\" and “proceeding\" at King, Jurisdiction and Procedure Under the Bankruptcy Amendments of 1984, 38 VAND.L.REV. 675, 676-677 (1985). . In re Nilsson, 42 B.R. 587 (Bkrtcy.C.D.Cal.1984); and Ginsburg, BANKRUPTCY, ¶ 1127 n. (6) and n. (13) (Prentice-Hall 1985). But cf. In re Butcher, 46 B.R. 109 (Bkrtcy.N.D.Ga.1985), relied on by Knostman, in which the state court case was removed directly to the Bankruptcy Court in Atlanta, Georgia, which transferred it directly to the “home” Bankruptcy Court in Knoxville, Tennessee. Transfer is reviewable while remand is not, and this may distinguish that case. Certainly, some transfers may be made by the bankruptcy court, e.g., transfer to a bankruptcy court for the district to which a debtor has moved, for the purpose of holding a reaffirmation and discharge hearing under section 524(d) of the Bankruptcy Code, a core proceeding under 28 U.S.C. § 157(b)(2)(0) (“other proceedings affecting ... the adjustment of the debtor-creditor ... relationship\"). In any event, the burden on the party requesting transfer was met in Butcher. It was not met here where the equities favoring remand are dominant. .“Any equitable ground\" sufficient for removal might include: (1) forum non conveniens; (2) that the entire action of a bifurcated matter should be tried in the same court; (3) that a state court is better able to resolve state law questions; (4) expertise of a particular court; (5) judicial economy; (6) prejudice to the involuntarily removed party; (7) comity; and (8) the lessened possibility of an inconsistent result. Browning v. Navarro, 743 F.2d 1069, 1076 n. 21 (5th Cir.1984), construing the first sentence of repealed 28 U.S.C. § 1478(b), a sentence identical to the current, bankruptcy-related removal statute, 28 U.S.C. § 1452(b). See also In Re Baren, 47 B.R." }, { "docid": "23419419", "title": "", "text": "that the Houston Bankruptcy Court granted Knostman the authority to enter into the JOA. Also, the trustee points out that litigation in Alabama will be more expensive for the trustee than litigation in Houston. While this court agrees that these factors weigh in favor of transfer, there are also several factors that weigh against transfer. First, at least a portion of the law to be applied in this case is Alabama law. Courts situated in Alabama, whether state or federal, will be more familiar with Alabama law than the Houston Bankruptcy Court, and this should make a judicial proceeding more efficient in Alabama. There is no indicated application of Texas law. Second, the Circuit Court of Jefferson County has already dealt with the substantive issues in this case when it issued the temporary restraining order on October 31, 1985. The Houston Bankruptcy Court has not had occasion to deal with the fraud issue in this case. It would be more judicially efficient to remand this case to the state court than to transfer the case to Houston because of this prior exposure. Third, since the plaintiffs have demanded a jury trial and the Houston Bankruptcy Court might not be able to meet this demand, it would not promote judicial efficiency to transfer this case. See In re L.A. Clarke and Son, Inc., 51 B.R. 31 (Bankr.D.D.C.1985); In re Bokum Resources Corp., 49 B.R. 854 (Bankr.D.N.M.1985). Last, if this court does not transfer this case, the potential conflict as to venue with respect to AmSouth Bank will be avoided. Compare 12 U.S.C. § 94 and 28 U.S.C. § 1409. See Matter of Chuck Harrison Dodge, Inc., 49 B.R. 381 (Bankr.W.D.Pa.1985); In re James Paul Neese, 12 B.R. 968, 971 (Bankr.W.D.Va.1981). But see, In re Dean Ford, Inc., 38 B.R. 4, 6 (Bankr.N.D.Ga. 1982). After weighing all of the above factors together, this court concludes that the transfer of this case to the Houston Bankruptcy Court would not be appropriate. Not only has the trustee failed to carry his burden on this issue, this court is convinced that both the interest of" }, { "docid": "18792755", "title": "", "text": "would be inconvenienced by a transfer of venue, their inconvenience is outweighed by the loss of efficiency that would result if the Trustee were forced to travel to Georgia to litigate this case. Neither convenience nor justice would be served by litigating the contract dispute in two different courts — to the detriment of the Trustee’s ability to administer the Debtor’s estate. D. REMAND TO THE STATE COURT OF GEORGIA Removal of the action pending in the State Court of Fulton County was effected by Lawyers Title pursuant to Bankruptcy Rule 9027 and 28 U.S.C. § 1452(a) (formerly 28 U.S.C. § 1478(a)). Authority to remand this action is found in 28 U.S.C. § 1452(b), which states that: The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise. Frazier asserts that the mandatory abstention provision set forth in 28 U.S.C. § 1334(c)(2) supports his contention that this case should be remanded. However, this section is not applicable, inasmuch as the bankruptcy case was commenced in 1983, and Congress gave 28 U.S.C. § 1334(c)(2) prospective application only. A factor to be considered in regard to the motion to remand is the effect that the decision to remand would have upon the efficient and economic administration of the estate. In re Lifeguard Industries, Inc., 26 B.R. 858, 860 (Bkrtcy.S.D. Ohio 1983); In re Jacksen, 25 B.R. 587, 589 (Bkrtcy.D.Conn.1982). This factor weighs against remand of the adversary proceeding to the State Court of Fulton County for the reasons stated in the preceding section. Frazier argues that the litigation involves questions of state law and should be decided in a state court which routinely hears such disputes. However, that argument was rejected by this Court in In re Unity Foods, Inc., 35 B.R. 876 (Bkrtcy.N.D.Ga.1983), where the dispute does not involve unsettled questions of state law. Accord, In re Lifeguard Industries, Inc., 26 B.R." }, { "docid": "23419441", "title": "", "text": "a formidable problem if transferred to Houston because of the unsettled state of the law regarding jury trials in bankruptcy cases. As a non-core case, delay could also be expected in a bifurcated trial in the Houston Bankruptcy Court for findings of fact and conclusions of law and in the Houston District Court for a final order or judgment on its de novo review. The State Court will be able to try and decide the case without the delays that would unavoidably attend disposition in the courts exercising bankruptcy jurisdiction. The position AmSouth Bank takes on these motions is anomalous. It argues that the equities of this case require its remand, but it does not insist on applying 12 U.S.C. § 94 under which venue as to it would be in a court in Jefferson County, Alabama. Despite its refusal to insist on the provisions of 12 U.S.C. § 94, remand to the State Court will avoid the conflict as to venue with respect to AmSouth Bank which would exist if the case is transferred to Houston. Knostman has focused on the expenses to the Debtor’s estate if he is required to try this case in the Alabama Court. However, unsecured creditors are not nearly as involved in the expenses of developing the Johns Field, and in the costs of litigation, as a consortium of banks whose collateral is at stake. These banks will reap the principal benefit, if any, from the Trustee’s efforts to develop the Johns Field. This case involves and arises out of the Trustee’s postpetition activities in Mississippi and Alabama, and little weight should be given to the expenses of litigation incidental to this venture whose costs are astronomical. The Trustee also says that the Houston Bankruptcy Court is peculiarly situated and equipped to understand and decide this case. Acknowledging the complexity of the bankruptcy case, the decision in Plaintiffs’ case will not require heroic erudition or an understanding of the proceedings in Houston. Alabama law will govern the issues based on fraud and misrepresentation. Cf. Henley v. Birmingham Trust National Bank, 295 Ala. 38, 46," }, { "docid": "23419428", "title": "", "text": "of fraud and misrepresentation in Count III. On October 31, 1985, the State Court entered a temporary restraining order preventing AmSouth Bank from paying and Knostman from attempting to draw on the L/Cs. After a delay for Knostman to produce documents, the case was set for hearing on preliminary injunction in the State Court on December 2, 1985. Knostman’s removal of the case on November 5, 1985, intervened before the case could be heard. On Plaintiffs’ motion, and by agreement of all parties, the temporary restraining order was first extended by this Court until December 12, 1985. It was then extended again by agreement until a final disposition has been made of the remand, abstention and transfer motions presently before the Court, subject to the rights of all parties to petition the Court for a modification or dissolution of the temporary restraining order. I. Does the Birmingham District Court have jurisdiction of this case? In the part here pertinent, 28 U.S.C. § 1452(a) provides that “A party may remove any claim or cause of action in a civil action ... to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.” Section 1334 gives the district courts “original and exclusive jurisdiction of all cases under title 11” [subsection (a)]; “original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11” [subsection (b) ]; and “exclusive jurisdiction of all of the property, wherever located, of the debtor as of the commencement of such case, and of the estate.” [subsection (d) ]. Plaintiffs and AmSouth Bank contend that the Complaint is not within any of these jurisdictional grants, and that the case is therefore not subject to removal from the State Court under section 1452(a). The Complaint does not state a case under title 11. Only the case initiated by the original bankruptcy petition filed in Houston qualifies as such under section 1334(a). See In re American Energy, Inc.," }, { "docid": "23419460", "title": "", "text": "39, 43 (Bkrtcy.N.D.Ill.1984), affd 48 B.R. 752 (N.D.Ill.1984); and In re U.S. Air Duct Corp., 8 B.R. 848, 854 (Bkrtcy.N.D.N.Y.1981). . Factors considered by other bankruptcy courts to decide the issue of transfer include: (1) proximity of the debtor, creditors and witnesses to the court; (2) location of assets; and (3) economical and efficient administration of the estate. See In Re Macon Uplands Venture, 2 B.R. 444, 445 (D.Md.1980), and the cases cited therein, construing repealed 28 U.S.C. §§ 1475 and 1477, sections similar to current 28 U.S.C. § 1412 except for the differences noted above. Consider also factors applied to determine whether a particular proceeding within a case should be transferred: (1) the relative ease of access to sources of proof; (2) the availability of compelling witness attendance and cost of that attendance; (3) the enforceability of a judgment; (4) whether a fair trial is possible; (5) the local interest in having localized controversies decided at home; and (6) a trial in the state whose law applies. Id. at 446. See also In Re Butcher, 46 B.R. 109 (Bkrtcy.N.D.Ga.1985), which discusses (1) factors to determine \"convenience of the parties” and (2) the relationship of the repealed sections to the current section. . See King, Jurisdiction and Procedure Under the Bankruptcy Amendments of 1984, 38 VAND. L.REV. 675 (1985); Sabino, Jury Trials in the Bankruptcy Court, COMM.L.J., Aug.-Sept. 1985, at 342; In re L.A. Clarke and Son, Inc., 51 B.R. 31 (Bkrtcy.D.C.1985); and In re Bokum Re sources Corp., 49 B.R. 854 (Bkrtcy.D.N.Mex. 1985). . There is a direct conflict between the venue provision of the National Bank Act, 28 U.S.C. § 94 and the venue provision of the Bankruptcy Code, 28 U.S.C. §§ 1408-1410, 1412. Similarly, there is a direct conflict between the courts attempting to resolve this question. On one hand, some courts have held that the National Bank Act governs. See In Re James Paul Neese, 12 B.R. 968, 971 (Bkrtcy.W.D.Va.1981), holding that the predecessor sections to 28 U.S.C. § 1408 • et seq. (28 U.S.C. §§ 1472-1477) were general and did not repeal by implication the" }, { "docid": "23419431", "title": "", "text": "claim or cause of action in a civil action over which the district court is given jurisdiction by section 1334. It was therefore removable from the State Court under section 1452(a). II. What are the practical alternatives under the pending motions for remand, abstention and change of venue? First, the case may be remanded to the Alabama Court under 28 U.S.C. § 1452(b) “on any equitable ground”. This is what Plaintiffs and AmSouth Bank want. Second, it may be transferred to the Houston District Court “in the interest of justice or for the convenience of the parties”. 28 U.S.C. § 1412. This is what Knostman wants. Third, the Birmingham District Court has venue of Plaintiffs’ civil action and could retain it and try it or refer it to the Birmingham Bankruptcy Court for findings of fact and conclusions of law. It would then be returned to the District Court for the entry of a final order or judgment. 28 U.S.C. § 1409(e) and § 157(c)(1). No one wants this. Knostman removed the case to the Birmingham District Court because 28 U.S.C. § 1452(a) authorizes removal only “to the district court where such civil action is pending”. Removal directly from the Alabama Court to the Houston District Court is not authorized. The Birmingham District Court is only a way station in Knost-man’s efforts to take the Plaintiffs’ case to Houston where the bankruptcy case is pending. Without dispositive regard for the parties’ preferences, trial by the Birmingham District Court, with or without reference to the Birmingham Bankruptcy Court, is the least favored alternative. Abstention is not appropriate. If the case is remanded or transferred, abstention by the Birmingham District Court need not be considered. Abstention is to be exercised, if at all, by the court exercising bankruptcy jurisdiction to whom the substantive decision is committed. For the Birmingham District Court to abstain without remanding or transferring would leave the case suspended in a state of limbo unresponsive to the parties’ concerns. The only real alternatives are to remand the case to the Alabama Court or to transfer it to the Houston" }, { "docid": "23419462", "title": "", "text": "specific statute 28 U.S.C. § 94. On the other hand, at least one .court has held to the contrary. In Re Dean Ford, Inc., 38 B.R. 4, 6 (Bkrtcy.N.D.Ga.1982), holding that 12 U.S.C. § 94 was repealed by 28 U.S.C. § 1471 but citing In re Associated Transport, Inc., 3 B.R. 124 (Bkrtcy.S.D.N.Y. 1980); In Re Malone, 5 B.R. 658 (Bkrtcy.S.D.Cal.1980); In Re Dick & Co., 8 B.R. 358 (Bkrtcy.N.D.Ind.1980); and In Re James Paul Neese, 12 B.R. 968 (Bankr.W.D.Va.1981), as four cases which have reached opposite results. See also the recent case of Matter of Chuck Harrison Dodge, Inc., 49 B.R. 381 (W.D.Pa.1985); holding the venue provision of 12 U.S.C. § 94 governs over the bankruptcy venue provisions in a preference action against a national bank. As the parties in this case do not press the issue, it is not neccesary to decide the question. This is fortunate in light of the changed venue sections of title 28 of the U.S.Code. . In their September 30, 1985 letter to all unsecured creditors concerning their application for over $800,000 attorneys’ fees and expenses, attorneys for the Trustee Knostman, wrote: The effect of the agreement and the order is that the bank group will permit its cash collateral to be used by the Trustee for legal fees and operating expenses without requiring the estates to repay the bank group unless the Trustee spends the money on items not previously disclosed to the bank group. As I mentioned, the bank group is funding the payment of our firm's fees through its cash collateral which the estates are not obligated to repay. The impact of our fees on unsecured creditors is therefore very small. To the extent the bank group funds our fees, they have a larger unsecured claim than at the outset of the case, but only insofar as our fees are not otherwise chargeable to them under § 506(c) of the Code. Given the large amount of just the unsecured claims filed in this case, in the range of $300,000,000, the impact of our fees, which at worst creates a larger" }, { "docid": "23419417", "title": "", "text": "for the convenience of the parties.” (emphasis added). As pointed out by the Bankruptcy Court, the word “and” in old section 1475 was changed to “or” in section 1412. This change should make it easier to meet the requirements necessary for transfer. Factors that should be considered in deciding whether to transfer a case are the convenience of witnesses, the parties’ access to proof, the ability to receive a fair trial, and judicial efficiency. See In re Legend Industries, Inc., 49 B.R. 935, 938 (Bankr.E.D.N.Y.1985). See also, In re Butcher, 46 B.R. 109, 112 (Bankr.N.D.Ga. 1985) (“The most important factor is whether the transfer of the proceeding would promote the economic and efficient administration of the estate.”). Also, the burden of proving appropriateness of transfer of venue of a bankruptcy case is on the party moving for the transfer. Id. In this case, the trustee has not met its burden. The convenience of the witnesses factor weighs against the trustee. Since this case involves letters of credit from an Alabama bank, this court assumes that many of the witnesses will be from Alabama. The plaintiffs and AmSouth Bank are from Alabama. The trustee is not from Alabama, but the trustee has chosen to deal with Alabama citizens and corporations. In light of this, this court finds that the convenience of witnesses factor weighs against transfer. The L’s/C would be drawn on an Alabama bank, and the fraud, if committed, was against Alabama residents in Alabama. There is nothing to indicate that access to proof would be better in Houston than in Birmingham. If anything, this access would be better in Birmingham. There is also no indication that a fair trial cannot be held in either Alabama or Texas. This being true, this factor does not weigh in favor of transfer. The last and most important factor is that of judicial efficiency. The trustee argues that this factor weighs in favor of transfer. The basis for this argument is that the Houston Bankruptcy Court is already dealing with Tomlinson Interests’ estate and that it is already familiar with this case in" }, { "docid": "10211966", "title": "", "text": "state proceedings over the last two years would be wasted. Lone Star Industries, Inc. v. Liberty Mutual Insurance, 131 B.R. 269 (D.Del.1991). Finally, the resolution of this dispute by the State court will only be helpful to the bankruptcy court and the trustee in determining the whereabouts of Central’s assets. Where such is the case, abstention is appropriate. In re Shop & Go, Inc., 124 B.R. 915 (Bankr.M.D.Fla.1991). This case was removed to this Court pursuant to 28 U.S.C. § 1452(a). Section 1452(b) provides that a case so removed may be remanded to the state court from which it was removed based upon “any equitable ground.” In deciding whether to remand, a court should consider the following factors: judicial economy, comity and respect for state court capabilities, the effect on the administration of the estate, the effect of bifurcating claims and the prejudice to the parties involved. Consideration of these factors militates that this matter be remanded to State court. Finally, this matter should not be transferred to another venue. A bankruptcy court may transfer a case only “in the interest of justice and for the convenience of the parties.” 28 U.S.C. § 1475. As a preliminary matter, a bankruptcy court should exercise its power to transfer venue cautiously. Moreover, the party moving for transfer has the burden of proving that transfer would be in the best interest of justice and for the convenience of the parties. In re A.R.E. Manufacturing, Company, Inc., 124 B.R. 912 (Bankr.M.D.Fla.1991). In applying the twin tests of “convenience of parties” and “in the interest of justice” the courts have considered the following factors: (1) relative ease of access to sources of proof; (2) availability of compulsory process for attendance of unwilling, and the cost of obtaining the attendance of willing, witnesses; (3) the enforceability of judgment if one is obtained; (4) relative advantages and obstacles to fair trial; (5) a local interest in having localized controversies decided at home; (6) a trial in the state the law of which will govern the action. In re International Coins & Currency, Inc., 18 B.R. 79 (Bankr.D.Ver.1982)." }, { "docid": "23419420", "title": "", "text": "to Houston because of this prior exposure. Third, since the plaintiffs have demanded a jury trial and the Houston Bankruptcy Court might not be able to meet this demand, it would not promote judicial efficiency to transfer this case. See In re L.A. Clarke and Son, Inc., 51 B.R. 31 (Bankr.D.D.C.1985); In re Bokum Resources Corp., 49 B.R. 854 (Bankr.D.N.M.1985). Last, if this court does not transfer this case, the potential conflict as to venue with respect to AmSouth Bank will be avoided. Compare 12 U.S.C. § 94 and 28 U.S.C. § 1409. See Matter of Chuck Harrison Dodge, Inc., 49 B.R. 381 (Bankr.W.D.Pa.1985); In re James Paul Neese, 12 B.R. 968, 971 (Bankr.W.D.Va.1981). But see, In re Dean Ford, Inc., 38 B.R. 4, 6 (Bankr.N.D.Ga. 1982). After weighing all of the above factors together, this court concludes that the transfer of this case to the Houston Bankruptcy Court would not be appropriate. Not only has the trustee failed to carry his burden on this issue, this court is convinced that both the interest of justice and the convenience of the parties will be better served in Alabama than in Houston. Both the plaintiffs and AmSouth would like this case to be remanded to the Circuit Court of Jefferson County. This case was removed pursuant to 28 U.S.C. § 1452(a). Section 1452(b) of Title 28 states: The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise. Equitable grounds include: (1) forum non conveniens; (2) a holding that, if the civil action has been bifurcated by removal, the entire action should be tried in the same court; (3) a holding that a state court is better able to respond to questions involving state law; (4) expertise of the particular court; (5) duplicative and uneconomic effort of judicial resources in two forums; (6) prejudice to the involuntarily removed parties; (7) comity considerations;" }, { "docid": "23419440", "title": "", "text": "that section were not made effective with respect to cases, such as this one, pending on July 10, 1984, or to proceedings arising in or related to such cases. See section 122(b), Pub.L. No. 98-353, July 10, 1984; and In re Baren, 47 B.R. 39 (Bkrtcy.N.D.Ill.1984), aff'd 48 B.R. 752 (N.D.Ill.1984). The Court may and should exercise its discretion to accomplish by remand the Congressional purpose favoring “comity with State courts or respect for State law.” 28 U.S.C. § 1334(c)(1). In re Atlas Automation, Inc., 42 B.R. 246 (Bkrtcy.E.D.Mich.1984); and In re Dakota Grain Systems, Inc., 41 B.R. 749 (Bkrtcy.D.N.D.1984). The Alabama Court was moving to hear this case on preliminary injunction when it was removed. Without suggesting that the case would not proceed promptly if transferred to Houston, there are several stumbling blocks it would encounter there that would not be experienced on remand to the State Court. The Plaintiffs have demanded and are entitled to a jury trial on some of the issues. This presents no problem in the State Court. It presents a formidable problem if transferred to Houston because of the unsettled state of the law regarding jury trials in bankruptcy cases. As a non-core case, delay could also be expected in a bifurcated trial in the Houston Bankruptcy Court for findings of fact and conclusions of law and in the Houston District Court for a final order or judgment on its de novo review. The State Court will be able to try and decide the case without the delays that would unavoidably attend disposition in the courts exercising bankruptcy jurisdiction. The position AmSouth Bank takes on these motions is anomalous. It argues that the equities of this case require its remand, but it does not insist on applying 12 U.S.C. § 94 under which venue as to it would be in a court in Jefferson County, Alabama. Despite its refusal to insist on the provisions of 12 U.S.C. § 94, remand to the State Court will avoid the conflict as to venue with respect to AmSouth Bank which would exist if the case is transferred" } ]

[ { "docid": "16761002", "title": "", "text": "the Restatement of Contracts: Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy. Restatement (Second) of Contracts § 356(1) (1979). Two factors combine to determine whether an amount fixed as liquidated damages is not so unreasonably large as to be unenforceable. First, to be reasonable the amount must approximate actual loss or loss anticipated at the time the contract was executed. Colonial at Lynnfield, Inc. v. Sloan, 870 F.2d 761, 764 (1st Cir.1989) (citing Security Safety Corp. v. Kuznicki, 350 Mass. 157, 213 N.E.2d 866, 867 (1966); A-Z Servicenter, Inc. v. Segall, 334 Mass. 672, 138 N.E.2d 266, 268 (1956); Lynch v. Andrew, 20 Mass.App.Ct. 623, 481 N.E.2d 1383, 1386 (1985); Restatement (Second) of Contracts § 356 (1981)). Second, “[t]he greater the difficulty either of proving that loss has occurred or of establishing its amount with the requisite certainty ... the easier it is to show that the amount fixed is reasonable.” Restatement (Second) of Contracts § 356 comment b. Considerable deference is given to the parties’ reasonable agreement as to the amount of liquidated damages where losses are difficult to quantify. Lynch v. Andrew, 481 N.E.2d at 1386; Kroeger v. Stop & Shop Cos., 13 Mass.App.Ct. 310, 432 N.E.2d 566, 573 (1982). That deference, however, is not unlimited. In Colonial at Lynnfield, Inc. v. Sloan, we found that the liquidated damages provision at issue was a reasonable estimate of difficult to ascertain damages. We nonetheless found that the liquidated damages provision was an unenforceable penalty because no loss had been sustained as a result of the breach. 870 F.2d at 765. Liquidated damages must compensate for loss rather than punish for breach: “[A]n exaction of punishment for a breach which could produce no possible damage has long been deemed oppressive and unjust.” Priebe & Sons, Inc. v. United States, 332 U.S. 407, 413, 68" } ]

[ { "docid": "19383579", "title": "", "text": "each day of such delay. If the payments due the Contractor are less than the amount of such liquidated damages, said damages shall be deducted from any other moneys due or to become due the Contractor, and, in case such damages shall exceed the amount of all moneys due or to become due the Contractor, the Contractor or his Surety shall pay the balance to the Owner. Table A referenced in the section provided for liquidated damages of $1,200 “for each calendar day of delay in completion time.” Foote contends that CA.14 is punitive in nature and thus unenforceable as a matter of law. Foote and PYCA further contend in their joint itemization that the District suffered no actual damages chargeable against them or, in the alternative, that the amount of damages assessed under Paragraph CA.12 was clearly excessive and operated as a penalty. Of course, the starting point in the analysis is the plain terms of CA.14, which state that the $1,200 amount “is agreed upon not as a penalty, but as fixed and • liquidated damages for each day of such delay.” Such clauses are construed by Mississippi courts with caution. With regard to liquidated damages clauses, the Mississippi Supreme Court provides the following general guideline: “Whether a sum stipulated is a penalty [a disfavored approach] or liquidated damages [an acceptable approach] is a question of construction to be decided upon the terms and inherent circumstances of each particular . contract, judged at the time of the making of the contract, not as at the time of the breach.” Hertz Commercial Leasing Div. v. Morrison, 567 So.2d 832, 836 n. 3 (Miss.1990) (citation omitted). It follows that, if the sum certain of liquidated damages is not extravagant or unconscionable under objective standards existing at the time of the agreement, the District need not ultimately suffer actual damages for CA.14 to be an enforceable provision. “Ordinarily, the intention of the parties will control as to whether a provision in a contract is for a penalty or for liquidated damages.” Continental Turpentine & Rosin Co. v. Gulf Naval Stores Co.," }, { "docid": "7813576", "title": "", "text": "N.E.2d at 268-69 (citations omitted). See also Restatement (Second) of Contracts, § 356(1) (“Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is un enforceable on the grounds of public policy as a penalty.”). Similarly, the First Circuit, citing both A-Z Servicenter and the Restatement, has identified two factors in Massachusetts for determining whether an amount fixed as liquidated damages is not so unreasonably large as to be unenforceable: First, to be reasonable the amount must approximate actual loss or loss anticipated at the time the contract was executed. Second, “[t]he greater the difficulty either of proving that loss has occurred or of establishing its amount with the requisite certainty ... the easier it is to show that the amount fixed is reasonable.” Space Master, 940 F.2d at 17-18 (quoting Restatement (Second) of Contracts, § 356 comment (b) (other citations omitted). The First Circuit recognizes that in Massachusetts “[cjonsiderable,” but “not unlimited” deference, “is given to the parties’ reasonable agreement as to the amount of liquidated damages where losses are difficult to quantify.” Id. (citations omitted). Nonetheless, the court concedes that “Massachusetts law clearly envisions a retrospective appraisal of a liquidated damages provision in certain circumstances.” Sloan, 870 F.2d at 765. Here, the parties appear to agree only that actual damages have not in fact been established, although that agreement arises from polar opposite positions. Defendants assert that PS has not been damaged at all. PS, on the other hand, claiming to have lost control over the dissemination of its trade secret, argues that its damages are incalculable, thereby necessitating application of the $10,-000 damage award for each breach. The analysis of the first factor set out in Space Master is immediately complicated by the very clause at issue. Although the parties have proceeded as if the clause is one for “liquidated damages,” that term is nowhere used in the parties’ two" }, { "docid": "17352257", "title": "", "text": "the parties intended the clause to serve as liquidated damages or as a penalty — a genuine dispute of material fact that prevents a grant of summary judgment. That argument is simply wrong. Whether a clause imposes enforceable liquidated damages or an unenforceable penalty is a question of law. NPS, LLC v. Minihane, 451 Mass. 417, 886 N.E.2d 670, 673 (2008). Even if the clause’s effect were a question of fact, Ejaz points to no record evidence indicating that he believed at the time of contracting that the clause was intended to be a penalty. Second, Ejaz claims that the clause is unenforceable because it is disproportionate to the damages Bose actually suffered. But this argument cannot square with Kelly v. Marx, 428 Mass. 877, 705 N.E.2d 1114 (1999), which explicitly stated that the damages actually suffered have no bearing on the enforceability of a liquidated damages clause. See id. at 1117. . Courts in other jurisdictions have followed the same approach. See, e.g., ProTherapy Assocs., LLC v. AFS of Bastian, Inc., 782 F.Supp.2d 206, 218-19 (W.D.Va.2011) (allowing enforcement of liquidated damages provision granting uncapped damages of $10,000 per breach across fifty-seven breaches); Elexco Land Servs., Inc. v. Hennig, No. 11-CV-00214, 2011 WL 9368970, at *6 (W.D.N.Y. Dec. 28, 2011) (reserving decision of whether liquidated damages clause providing $25,000 per breach is enforceable until plaintiff actually sought damages under the clause); Mattingly Bridge Co. v. Holloway & Son Constr. Co., 694 S.W.2d 702, 704 (Ky.1985) (allowing enforcement of liquidated damages provision granting $750 damages per day late without limit but reducing recovery from unreasonable 193-day penalty to reasonable 32 and 2/3-day damages); Bd. of Cnty. Comm'rs of Adams Cnty. v. City & Cnty. of Denver, 40 P.3d 25, 32 (Colo.App.2001) (\"If a contract stipulates a single liquidated damage amount for several possible breaches, the damage provision is invalid as a penalty if it is unreasonably disproportionate to the expected loss on the very breach that did occur and was sued upon.”); Anonymous v. Anonymous, 233 A.D.2d 162, 649 N.Y.S.2d 665, 666-67 (1996) (liquidated damages provision allowing $500,000 per breach of" }, { "docid": "6452779", "title": "", "text": "allow the damaged party to recover both liquidated damages and actual damages, Hanson, supra, 485 A.2d at 1299; nor will they enforce a liquidated damages provision where, although the contract has been breached, the breach caused no damage. Norwalk, supra, 220 A.2d at 268. The burden of proving that no damages were suffered falls on the party seeking to avoid the award of liquidated damages. Id. Norwalk, supra, 220 A.2d at 268. Provisions that impose a penalty for breach of contract are deemed invalid, Hanson, supra, 485 A.2d at 1299; King Motors v. Delfino, 136 Conn. 496, 72 A.2d 233 (1950); and the injured party’s recovery under such clauses will be limited to actual damages. A penalty provision is one which, instead of specifying the sum that the parties in good faith agreed on as representing the damages that would ensue from breach, was inserted in the contract to deter a party from breaching the contract and to penalize the party for doing so. King Motors v. Delfino, supra; Berger v. Shanahan, 118 A.2d 311, 142 Conn. 726 (1955). Section 506(b) Over and above the requirements of Connecticut law, Barclays’ early termination charge must meet the reasonableness standard under Bankruptcy Code § 506(b). Section 506(b) limits the secured party’s recovery to “reasonable” fees, costs or charges. The courts have interpreted reasonable to mean actual and necessary. In re American Metals Corp., 31 B.R. 229, 237 (Bankr.D.Kan.1983); In the Matter of Lane Poultry of North Carolina, 63 B.R. 745, 749 (Bankr.M.D.N.C.1986); In re Banks, 31 B.R. 173, 178 (Bankr.N.D.Ala.1982). Therefore, al though a liquidated damages charge may be reasonable and valid under Connecticut law because it was a reasonable estimate of the damages anticipated when the contract was made, that same charge will be valid and enforceable under § 506(b) only to the extent that the secured party actually incurred damages. Thus, if Barclays’ actual damages were less than the amount provided for in the liquidated damages clause, Barclays’ recovery would be limited to the amount of damages actually sustained. See In re Baker, 49 B.R. 240, 243 (Bankr.E.D.Pa.1985) (a contract" }, { "docid": "3939684", "title": "", "text": "Court finds that it is not. [25-33] Black’s Law Dictionary (8th ed.2004) defines a “liquidated damages clause” as: A contractual provision that determines in advance the measure of damages if a party breaches the agreement. Traditionally, courts have upheld such a clause unless the agreed-on sum is deemed a penalty for one of the following reasons: (1) the sum grossly exceeds the probable damages on breach, (2) the same sum is made payable for any variety of different breaches (some major, some minor), or (3) a mere delay in payment has been listed among the events of default. Liquidated damages are generally allowable under the common law . See Richard A. Lord, 24 Williston on Contracts § 65:1 (4th ed.): Under the fundamental principle of freedom of contract, the parties to a contract have a broad right to stipulate in their agreement the amount of damages recoverable in the event of a breach, and the courts will generally enforce such an agreement, so long as the amount agreed upon is not unconscionable, is not determined to be an illegal penalty, and is not otherwise vio-lative of public policy. It is generally agreed that a liquidated damages provision does not violate public policy when, at the time the parties enter into the contract containing the clause, the circumstances are such that the actual damages likely to flow from a subsequent breach would be difficult for the parties to estimate or for the non-breaching party to prove, and the sum agreed upon is designed merely to compensate the nonbreacher for the other party’s failure to perform. On the other hand, a liquidated damages provision will be held to violate public policy, and hence will not be enforced, when it is intended to punish, or has the effect of punishing, a party for breaching the contract, or when there is a large disparity between the amount payable under the provision and the actual damages likely to be caused by a breach, so that it in effect seeks to coerce performance of the underlying agreement by penalizing non-performance and making a breach prohibitively and" }, { "docid": "18555397", "title": "", "text": "a contract simply for the payment of money, a stipulation to pay a fixed sum in default of performance will be regarded as an agreement for a penalty, and not as a covenant for liquidated damages. The reason for this rule is that for the nonpayment of money, the law awards interest as damages, and hence there is no difficulty in ascertaining the damages in such case. 14 N.Y.Jur. Damages § 167 (1969) (footnote omitted). Our review of New York law leads us to conclude that this statement is inaccurate. The eases cited for the black letter rule in New York Jurisprudence at most state in dicta a general proposition, implicitly subject to exceptions, which finds direct support in no New York cases of which we are aware. Under these circum stances, we decline to accept this encyclopedia’s statement of the law. We reviewed the New York law on liquidated damages in Walter E. Heller & Co. v. American Flyers Airlines Corp., 459 F.2d 896, 899 (2d Cir. 1972). [Ujnder New York law a contractually agreed upon sum for liquidated damages will be sustained where (1) actual damages may be difficult to determine and (2) the sum stipulated is not “plainly disproportionate” to the possible loss. The bankruptcy court held in the present case: [I]t is not clear that damages in this contract . . . were so difficult of ascertainment that a liquidated damages clause, in excess of interest payments, was required, nor has sufficient showing of actual loss indicated, in retrospect, that the determination as made by the parties was accurate. Without showing either of the above, the claimants here cannot show that the pre-payment charge constitutes a valid liquidated damages estimate rather than a prohibited penalty. Bankr.Ct.Op. at 9. We believe the bankruptcy court erred by using hindsight in making this determination. As we recognized in Heller, [U]nder New York law . .. the actual damages suffered by the party for whose benefit the clause is inserted in the contract have little relevance to the validity of a liquidated damages clause. The soundness of such a clause" }, { "docid": "16934160", "title": "", "text": "by the district court to mitigate the effects of the error, we hold that denying Coady the opportunity to present evidence of the firm’s income straddle was not harmless error. IV. Finally, Coady’s contention that the district court erred in refusing to strike the firm’s claim for liquidated damages is meritless. Our review is de novo. See, e.g., American Nat’l Bank & Trust Co. v. Regional Transp. Auth., 125 F.3d 420, 439 (7th Cir.1997) (citing Lake River Corp. v. Carborundum Co., 769 F.2d 1284, 1290 (7th Cir.1985)); Ruckelshaus v. Broward County Sch. Bd., 494 F.2d 1164, 1165 (5th Cir.1974). This circuit has long recognized the validity of liquidated damages provisions, observing in Progressive Builders, Inc. v. District of Columbia, 258 F.2d 431, 433-34 (D.C.Cir.1958), that so long as the amount agreed to by the parties prior to the breach is reasonable, the court will uphold the provision: “[There is] difficulty of laying down any narrower test than the reasonableness in each particular case of the sum agreed upon as compensation for the breach.” Id. (quoting 3 Samuel Williston, A TREATISE ON THE Law OF CONTRACTS § 2214 (rev. ed. 1936)). Under District of Columbia law, liquidated damages clauses are valid and enforceable. See, e.g., Horn & Hardart Co. v. National Rail Passenger Corp., 848 F.2d 546, 550 (D.C.Cir.1988) (citing Vicki Bagley Realty, Inc. v. Laufer, 482 A.2d 359, 368 (D.C.1984)); Burns v. Hanover Ins. Co., 454 A.2d 325, 327 (D.C.1982). Coady, too, acknowledges that liquidated damages provisions can be legitimate, but he contends that the $400,000 amount is unenforceable on public policy grounds and because it is a penalty inasmuch as the contractual provision had no relationship to the actual damages suffered or anticipated. The authorities on which he relies, however, fail to advance his cause. The Restatement (Second) of Contracts § 356(1) states that [djamages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large" }, { "docid": "7813577", "title": "", "text": "(b) (other citations omitted). The First Circuit recognizes that in Massachusetts “[cjonsiderable,” but “not unlimited” deference, “is given to the parties’ reasonable agreement as to the amount of liquidated damages where losses are difficult to quantify.” Id. (citations omitted). Nonetheless, the court concedes that “Massachusetts law clearly envisions a retrospective appraisal of a liquidated damages provision in certain circumstances.” Sloan, 870 F.2d at 765. Here, the parties appear to agree only that actual damages have not in fact been established, although that agreement arises from polar opposite positions. Defendants assert that PS has not been damaged at all. PS, on the other hand, claiming to have lost control over the dissemination of its trade secret, argues that its damages are incalculable, thereby necessitating application of the $10,-000 damage award for each breach. The analysis of the first factor set out in Space Master is immediately complicated by the very clause at issue. Although the parties have proceeded as if the clause is one for “liquidated damages,” that term is nowhere used in the parties’ two contracts. Moreover, the clause itself provides for alternative remedies, namely, “the greater of ten thousand dollars ($10,000) for, or such damages as are occasioned by, each instance of ... unauthorized use or disclosure.” Thus, oddly enough for a liquidated damages clause, the provision appears to assume that actual damages can be established in each instance of a breach: if actual damages are greater than ten thousand dollars, then the higher amount would be imposed; if actual damages are less, then the $10,000 amount would apply. As a result, the assumption built into the first inquiry — that actual damages are difficult to ascertain — is seemingly contradicted by the terms of the clause itself. The Court therefore questions whether the clause is even appropriately one for “liquidated damages.” Another aspect of the instant dispute — the number of unauthorized “uses or disclosures” — further complicates the first inquiry required by Space Master. Was there only one continuing violation? Was there one violation every time AVN added a new store beyond the original eight? Was there" }, { "docid": "2460903", "title": "", "text": "to Kansas law to determine the validity of the liquidated damages provision under state law. a. Kansas case law Kansas follows the common law on liquidated damages: liquidated damages are authorized if the amount specified is determined to be reasonable and the amount of damages is difficult to ascertain. See, e.g., White Lakes Shopping Center, Inc. v. Jefferson Standard Life Insurance Co., 208 Kan. 121, 490 P.2d 609, 613 (1971); Unified School District No. 315 v. DeWerff 6 Kan.App.2d 77, 626 P.2d 1206, 1208 (1981). If the requirements for a valid liquidated damages clause are not met, however, the provision is an illegal penalty, and is void. Unified School District, 626 P.2d at 1209; White Lakes, 490 P.2d at 613. Generally, Kansas law considers a contract provision to be a penalty where there is no attempt to calculate the amount of damages that might result from a breach, Unified School District, 626 P.2d at 1209, or where the calculation is not reasonable. Id. at 1210. A valid liquidated damages provision cannot be the result of compulsion or an adhesion contract. Id. at 1209. Reasonable prepayment premiums are generally enforceable. In re LHD Realty Corp., 726 F.2d 327, 330 (7th Cir.1984); see generally Annotation, Construction & Effect as to Interest Due of Real Estate Mortgage Clause Authorizing Mortgagor to Prepay Principal Debt, 86 A.L.R.3d 599 (1978). A prepayment premium is not unusual in commercial loans of this magnitude between sophisticated business entities, each of which seeks its own maximum benefits and protections in the transaction. Neither party has cited, and the Court has not discovered, any Kansas case on prepayment premiums. Thus the Court must examine whether the language of the agreement in this case satisfies two requirements: (1) the amount of damages is difficult to ascertain; (2) the estimate of damages is reasonable. The debtor does not contest the difficulty of ascertaining damages as of the date of entering into the loan agreement. Thus the Court turns to the question of the reasonableness of the estimate of damages. b. Reasonableness In determining whether a liquidated damages clause results from a" }, { "docid": "12846724", "title": "", "text": "question. We noted in Lake River Corp. v. Carborundum, Co., 769 F.2d 1284, 1289 (7th Cir.1985), that courts’ traditional “refusal to enforce penalty clauses is (at best) paternalistic,” but noted that “like every other state, Illinois, untroubled by academic skepticism of the wisdom of refusing to enforce penalty clauses against sophisticated promisors ... continues steadfastly to insist on the distinction between penalties and liquidated damages.” While our comments in Lake River have found their way into a leading contracts treatise, see E. Allan Farnsworth, Contracts (2d ed. 1990), § 12.18 n. 14, the case has never been cited by an Illinois court. Instead, the Illinois courts have adhered to the common law principle that unreasonably large liquidated damages provisions are unenforceable as penalty clauses. E.g. Grossinger Motorcorp, Inc. v. American Nat’l Bank & Trust Co., 240 Ill.App.3d 737, 180 Ill.Dec. 824, 607 N.E.2d 1337 (1992). See also Restatement (Second) Contracts § 356(1). The common law principle is that a liquidated damages provision is enforceable when it appears in advance that it would be difficult at the time of breach to compute actual damages and the liquidated damages provision is a good faith attempt to estimate what actual damages would be. It seems clear enough in this case that determining actual damages might be difficult. Where an advertiser backs out, the magazine can print fewer pages (which probably reduces the magazine’s costs), or can try to resell the space. But if it re-sells the space, perhaps the new buyer is someone who would have advertised anyway, which would have permitted the magazine to print additional pages (increasing both its revenue and its expenses). All of these possibilities are riddled with variables, so figuring out actual damages in the event an advertiser breaches does look as if it might be a daunting task, permitting the parties to agree in advance to a liquidated damages provision. But that provision must be a reasonable attempt to estimate actual damages. On the record before us, it is difficult to tell whether the “short rate” provision is such a reasonable effort. While on its face this" }, { "docid": "7213823", "title": "", "text": "yet earned. HSG argues that section 8.3 of the Representation Agreement in unenforceable on several grounds. First, HSG argues that section 8.3 of the Representation Agreement violates public policy because it constitutes a penalty that requires payments that are grossly disproportionate to the amount of actual damages. \"Whether a sum stipulated is a penalty or liquidated damages is a question of construction `to be decided upon the terms and inherent circumstances of each particular contract, judged as at the time of the making of the contract, not as at the time of the breach.'\" Shields, 132 Miss. at 297, 95 So. 839 (Citations omitted) (Emphasis added). “To distinguish then liquidated damages from a penalty, courts must look to the parties’ intentions.” Board of Trustees v. Johnson, 507 So.2d 887, 890 (Miss.1987) (citing Continental Turpentine & Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 485, 142 So.2d 200 (1962)). In Board of Trustees v. Johnson, the court found that because the loss arising from the failure to perform under the agreement was difficult to assess, “the parties rightly agreed to include a liquidated damages provision in their contract.” Id. Further, the court found that “such damages [were] reasonable, since their amount varies with the time remaining under the contract, thereby more accurately reflecting the ... losses.” Id. Although HSG argues that the amount of damages, at the time of the November Letter, appears to be disproportionate to the actual damages sustained, the Court finds that at the time the Representation Agreement was originally agreed upon, and throughout the six amendments, both parties agreed that damages could not easily be estimated. HSG argues that “the forfeiture of millions of dollars constitutes an unenforceable penalty,” the Court finds that the damages were reasonable because the varying number of subscribers to the Debtors sendees, which directly affected the amount of Residual Commissions owed to HSG, varied over time. Therefore, the Court finds that even if the affirmative defense of unenforceability based on public policy were properly before the Court, section 8.3 of the Representation Agreement did not constitute a penalty, and thus," }, { "docid": "16352255", "title": "", "text": "contract, not as of the time of the breach. See Vernitron, 478 N.Y.S.2d at 934. Whether a provision constitutes an enforceable liquidated damages clause or an unenforceable penalty is a matter of law to be decided by the court. See id. Courts have tended in close cases to “favor the construction which makes the sum payable for breach of contract a penalty rather than liquidated damages, even where the parties have styled it liquidated damages rather than a penalty.” Rattigan v. Commodore Int’l Ltd., 739 F.Supp. 167, 169-70 (S.D.N.Y.1990) (quoting City of New York v. Brooklyn & Manhattan Ferry Co., 238 N.Y. 52, 56, 143 N.E. 788 (1924)). Nevertheless, DAR has the burden of proving that the liquidated damage clause to which it freely contracted is, in fact, a penalty. See id. at 170; P.J. Carlin Constr. Co. v. City of New York, 59 A.D.2d 847, 399 N.Y.S.2d 13, 14 (1st Dep’t 1977). DAR argues that the liquidated damages clause at issue calls for an amount disproportionate to the actual damages Uniforce will likely suffer in the event of breach. Article XV(F) of the License Agreement states that, if DAR breaches the restrictive covenants, it must pay Uniforce “twelve (12) times the highest monthly service charge earned by [Uniforce] ... during the twelve (12) months preceding the earlier of: (1) the date of notice of termination of this Agreement; or (2) the date on which [DAR] ceases to operate a Uniforce temporary personnel service business.” Because this provision does not calculate damages depending on when the breach occurs, DAR asserts that it is unrelated to any actual damages Uni-force might incur. Moreover, because the formula for determining damages multiplies the highest, as opposed to the average, month’s earnings by twelve, DAR claims that the provision is coercive and designed to force compliance. For these reasons, DAR maintains, the liquidated damages clause acts as a penalty. I disagree. Contracting parties have an incentive to negotiate a liquidated damages clause whenever the costs of such a negotiation are less than the expected costs resulting from their reliance on the standard compensatory damages" }, { "docid": "3939686", "title": "", "text": "unreasonably costly. In such cases the clause, rather than establishing damages that approximate or are proportional to the harm likely to flow from a particular breach, actually constitutes' a penalty, and, since penal clauses are generally unenforceable, provisions having this effect are declared invalid; and this is generally true even where the provision is negotiated in good faith, at arms’ length and between parties of equal bargaining power. These rules are designed to allow the parties the greatest freedom of contract while at the same time preventing them from overstepping that freedom by including illegitimate penal provisions. As the drafters of the Restatement (Second) of Contracts point out, and as the cases make clear, “[t]he central objective behind the system of contract remedies is compensatory, not punitive. Punishment of a promisor for having broken his promise has no justification on either economic or other grounds and a term providing such a penalty is unenforceable on grounds of public policy.” Thus, because the purpose of contract remedies is to provide compensation for the harm caused by a breach, and because a liquidated damages clause is designed to substitute a sum agreed upon by the parties for any actual damages suffered as a result of a breach, it, too, must be calculated to compensate, rather than to punish a breach. As a result, the law of most jurisdictions requires that a liquidated damages provision, in order to be enforceable, constitute the parties’ best “estimate of potential damages in the event of a contractual breach where damages are likely to be uncertain and not easily proven.” Moreover, since a valid liquidated damages clause is intended to substitute the sum agreed upon for any actual damages that may be suffered as a result of a breach, one “purpose of a liquidated damages provision is to obviate the need for the nonbreaching party to prove actual damages.” Thus, where the liquidated damages clause represents a reasonable attempt by the parties to agree in advance upon a sum that will compensate the nonbreacher for any harm caused by the breach, in lieu of the compensatory contract" }, { "docid": "19383580", "title": "", "text": "• liquidated damages for each day of such delay.” Such clauses are construed by Mississippi courts with caution. With regard to liquidated damages clauses, the Mississippi Supreme Court provides the following general guideline: “Whether a sum stipulated is a penalty [a disfavored approach] or liquidated damages [an acceptable approach] is a question of construction to be decided upon the terms and inherent circumstances of each particular . contract, judged at the time of the making of the contract, not as at the time of the breach.” Hertz Commercial Leasing Div. v. Morrison, 567 So.2d 832, 836 n. 3 (Miss.1990) (citation omitted). It follows that, if the sum certain of liquidated damages is not extravagant or unconscionable under objective standards existing at the time of the agreement, the District need not ultimately suffer actual damages for CA.14 to be an enforceable provision. “Ordinarily, the intention of the parties will control as to whether a provision in a contract is for a penalty or for liquidated damages.” Continental Turpentine & Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 142 So.2d 200, 209 (1962) (citation omitted). Such clauses are deemed unenforceable penalties generally only in limited cases where (1) “the actual damage resulting from the breach may be readily ascertained,” or (2) “the contract discloses no intention to fix the sum as liquidated damages or leaves the intention in this regard in doubt.” Id. (citation omitted). In such cases, the contested clause is “not a genuine ... pre-estimate of liquidated damages, but was in fact a measure to police and terrorize the [adversely affected party].” Id. (citation and internal quotation omitted). The inherent difficulty of affixing actual damages flowing from a potential breach is a factor favoring the use of liquidated damages clauses. See Daniel Int'l Corp. v. Fischbach & Moore, Inc., 916 F.2d 1061, 1066-67 (5th Cir.1990); Dahlstrom Corp. v. State Hwy. Comm’n, 590 F.2d 614, 615-16 (5th Cir.1979); Board of Trustees of State Institutions of Higher Learning v. Johnson, 507 So.2d 887, 889-90 (Miss.1987) (following Dahlstrom). The District demonstrates, and Foote does not deny, that it could not foresee" }, { "docid": "3769457", "title": "", "text": "a contrary holding.” White Lakes Shopping Ctr., Inc. v. Jefferson Standard Life Ins. Co., 208 Kan. 121, 490 P.2d 609, 613 (1971) (internal quotation marks omitted). Kansas courts distinguish unenforceable penalties from enforceable liquidated damages using “two considerations”: first, whether the amount is “conscionable,” that is, whether it is “reasonable in view of the value of the subject matter of the contract and of the probable or presumptive loss in case of breach”; second, whether the “nature of the transaction is such that the amount of actual damage resulting from default would not be easily and readily determinable.” Id. (internal quotation marks omitted). Kansas law echoes traditional common-law principles in this respect. See Restatement (Second) of Contracts § 356(1) & cmt. b (1981) (Restatement). There is some doubt, however, about the temporal perspective from which Kansas law evaluates the reasonableness of the liquidated-damages provision. In other jurisdictions some courts consider only the reasonableness of the provision at the time of contract formation. That is, only future damages, as conceived prospectively when the contract is made, are relevant in evaluating the reasonableness of a liquidated-damages provision. See, e.g., Kelly v. Marx, 428 Mass. 877, 705 N.E.2d 1114, 1117 (1999) (“In addition to meeting the parties’ expectations, the ‘single look’ approach helps resolve disputes efficiently by making it unnecessary to wait until actual damages from a breach are proved. By reducing challenges to a liquidated damages clause, the ‘single look’ approach eliminates uncertainty and tends to prevent costly future litigation.”). Other courts additionally compare the amount that would be awarded under the liquidated-damages provision with the actual damages a promisee suffered; that is, they take an additional “retrospective” look at actual damages. See Yockey v. Horn, 880 F.2d 945, 953 (7th Cir.1989) (“If the non-breaching party has suffered no damages whatsoever from the breach, the Restatement suggests that the clause will be unenforceable, no matter how reasonable the estimate of damages was at the time of contracting.”) (interpreting Restatement, supra, § 356 and applying Illinois law). Although in White Lakes the Kansas Supreme Court evaluated damages only in prospective terms, our review" }, { "docid": "7813574", "title": "", "text": "impossible to ascertain ahead of time. See Space Master Intern., Inc. v. Worcester, 940 F.2d 16, 18 (1st Cir.1991). Moreover, PS disputes the assertion that it suffered no loss; on the contrary, it claims to have lost control over the dissemination of its trade secret. As to Defendants’ second argument, PS contends that factual issues concerning waiver — e.g., whether PS acquiesced in Defendants’ breaches, informed Defendants of its intention to enforce the contract or was notified of Defendants’ expansion to seventeen stores — preclude summary judgment. Finally, PS argues that the approximately $43,000 it received from Blockbuster had nothing to do with Defendants’ own liability. That Blockbuster had a separate contract action against Defendants, PS claims, is of no moment. IV. DISCUSSION A. LIQUIDATED DAMAGES For purposes here, both parties have assumed that the clause at issue concerns liquidated damages. The Massachusetts Supreme Judicial Court has said the following regarding liquidated damages: Whether a provision of a contract for the payment of a sum upon a breach is rendered unenforceable by reason of its being a penalty depends upon the circumstances of each case. Where actual damages are difficult to ascertain and where the sum agreed upon by the parties at the time of the execution of the contract represents a reasonable estimate of the actual damages, such a contract will be enforced. But where the actual damages are easily ascertainable and the stipulated sum is unreasonably and grossly disproportionate to the real damages from a breach, or is unconscionably excessive, the court will award the aggrieved party no more than his actual damages. The words “liquidated damages and not as a penalty” ... are not decisive. If from the nature of the transaction and the attending circumstances it appears that the contract is a cloak to hide a sum of money out of proportion to and differing greatly from the actual damages ordinarily arising from a breach, then the sum named as in the case at bar is a penalty. This is true even if it may be designated in the contract as liquidated damages. A-Z Servicenter, 138" }, { "docid": "14245512", "title": "", "text": "more, sufficient to sustain an unfair competition claim. See Defs.’ Reply 3. Indeed, Hawaii Medical Ass’n was no ordinary breach of contract case. The matter involved a claim that a health insurer had engaged in an unfair and deceptive scheme through the systematic denial, reduction, or delay of reimbursement to physicians for medically necessary services for its insureds. Hawaii Med. Ass’n, 113 Hawai’i at 88, 148 P.3d at 1190. . The Hawai’i legislature codified the rule against penalty clauses when it adopted Article 2 of the Uniform Commercial Code. Specifically, HRS § 490:2-718(1), which applies to transactions in goods, provides that: Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. HRS § 490:2-718(1). Professor Corbin’s treatise notes that the Uniform Commercial Code’s formulation of the rule against penalties differs from the common law approach insofar as it evaluates \"whether the sum is a reasonable pre-estimate of the probable or actual loss.” 11 Corbin on Contracts § 58.1, at 398 (emphasis in original). . Unlike Professor Corbin’s treatise, which does not view a penalty provision as violative of public policy, the Restatement (Second) of Contracts § 365(1) (1981) states that \"[a] term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.” . It would appear that the applicable statute of limitations for a tortious interference claim is HRS § 657-7, which sets a two-year limitations period. See Roberts v. City & County of Honolulu, CV. NO. 07-00391 DAE-KSC, 2008 WL 563475, at *4, 2008 U.S. Dist. LEXIS 16068, at *10-*11 (D.Haw. Mar. 3, 2008) (\"Although Hawaii courts have not specifically addressed the question of whether the two-year statute of limitations or the six-year statute of limitations applies to intentional interference with contract and prospective business relationships claims, Hawaii courts have stated that" }, { "docid": "12846723", "title": "", "text": "were in effect at the time of the breach. The district court here read this language as referring to the 1991 rates, which were in effect when Moonlight first told Elegant Bride that it was not going to take out all of the pages that it had promised to. Moonlight provides us with no reason to take issue with this interpretation. The district court correctly computed the short rate in this case. C The only other possible objection to the damages calculation is the argument that the “short rate” provision is a penalty clause, and therefore unenforceable under Illinois law. Moonlight did not advance this argument before the district court, and did so on appeal only to suggest that the jurisdictional amount had not been satisfied. But as we have noted, because there is no suggestion that Elegant Bride’s damages claim was not made in good faith, that argument goes nowhere. But had this argument been made as a challenge to the validity of the short rate liquidated damages provision, it would raise an interesting question. We noted in Lake River Corp. v. Carborundum, Co., 769 F.2d 1284, 1289 (7th Cir.1985), that courts’ traditional “refusal to enforce penalty clauses is (at best) paternalistic,” but noted that “like every other state, Illinois, untroubled by academic skepticism of the wisdom of refusing to enforce penalty clauses against sophisticated promisors ... continues steadfastly to insist on the distinction between penalties and liquidated damages.” While our comments in Lake River have found their way into a leading contracts treatise, see E. Allan Farnsworth, Contracts (2d ed. 1990), § 12.18 n. 14, the case has never been cited by an Illinois court. Instead, the Illinois courts have adhered to the common law principle that unreasonably large liquidated damages provisions are unenforceable as penalty clauses. E.g. Grossinger Motorcorp, Inc. v. American Nat’l Bank & Trust Co., 240 Ill.App.3d 737, 180 Ill.Dec. 824, 607 N.E.2d 1337 (1992). See also Restatement (Second) Contracts § 356(1). The common law principle is that a liquidated damages provision is enforceable when it appears in advance that it would be difficult at" }, { "docid": "7213822", "title": "", "text": "such penalties are unenforceable.” “The essence of a penalty is a payment of money stipulated as in térro- rem of the party breaching the contract; while the essence of liquidated damages ‘is a genuine covenanted pre-estimate of damages.’ ” Shields, 132 Miss, at 296-297, 95 So. 839 (citations omitted). Indeed, parties agree to the payment of liquidated damages where it is difficult to determine actual damages, resulting from a breach. Brown v. Staple Cotton Co-Op. Association, 132 Miss. 859, 892, 96 So. 849 (1923) “In Mississippi, where such damages for breach are both ‘uncertain and difficult of estimation,’ such a provision has regularly been construed as one for liquidated damages.” Dahlstrom Corp. v. State Highway Com., 590 F.2d 614, 616 (5th Cir.1979) (citing Wood Naval Stores Export Ass’n v. Latimer, 220 Miss. 652, 668, 71 So.2d 425 (1954)). In the instant matter, the Representation Agreement states that the damages for solicitation would be difficult to estimate, and because of such difficulty, the parties agreed that if HSG solicited Customers, HSG would forego Residual Commissions not yet earned. HSG argues that section 8.3 of the Representation Agreement in unenforceable on several grounds. First, HSG argues that section 8.3 of the Representation Agreement violates public policy because it constitutes a penalty that requires payments that are grossly disproportionate to the amount of actual damages. \"Whether a sum stipulated is a penalty or liquidated damages is a question of construction `to be decided upon the terms and inherent circumstances of each particular contract, judged as at the time of the making of the contract, not as at the time of the breach.'\" Shields, 132 Miss. at 297, 95 So. 839 (Citations omitted) (Emphasis added). “To distinguish then liquidated damages from a penalty, courts must look to the parties’ intentions.” Board of Trustees v. Johnson, 507 So.2d 887, 890 (Miss.1987) (citing Continental Turpentine & Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 485, 142 So.2d 200 (1962)). In Board of Trustees v. Johnson, the court found that because the loss arising from the failure to perform under the agreement was difficult to" }, { "docid": "11885204", "title": "", "text": "to be recovered is not ‘disproportionate to the probable damage,’ the courts will construe it to be liquidated damages.” (Our emphasis). In Stein v. Bruce, 366 S.W.2d 732, 736 (Mo.App.1963), the Kansas City Court of Appeals observed: “[I]t will be our duty to hold that the stipulated sum is for liquidated damages unless we determine it to be unreasonable in amount as a forecast of probable damages and disproportionate to the amount of damages that could probably result from the breach.” (Emphasis in original). Williston observes: “Although the mere fact that, as it turns out, the sum named exceeds the actual damage will not make it a penalty, since the reasonableness of the provision must be considered as of the date of the contract, yet the excessive size of the sum agreed upon may tend to show that the parties did not make a bona fide effort to fix the actual value of the injury.” 5 Williston on Contracts § 783, at 725-726 (3d Ed. 1961). The Restatement of Contracts § 339, Comment (c) recites: “Where the amount of loss or harm that has been caused by a breach is uncertain and difficult of estimation in money, experience has shown that the estimate of a court or jury is no more likely to be exact compensation than is the advance estimate of the parties themselves. Further, the enforcement of such agreements saves the time of courts, juries, parties, and witnesses and reduces the expense of litigation. In such cases, if it is not shown that the principle of compensation has been disregarded, the liquidation by the parties is made effective.” We are, of course, required to follow Missouri law. Where uncertainty exists as to state law, consideration must be given to the rule which we believe the state court would in all probability follow under the facts presented. To measure the reasonableness of a liquidated damages stipulation by proof of the actual amount of damages incurred invokes hindsight judgment guided by events that actually occurred rather than by the intention of the parties at the time the contract was executed" } ]

[ { "docid": "1932207", "title": "", "text": "from present military service if the law of the land with respect to their selection and induction has been disregarded by the administrative tribunal to their prejudice. United States v. Bowles, 3 Cir., 131 F.2d 818, affirmed 63 S.Ct. 912, 87 L.Ed. —, May 3, 1943. In Hirabayashi v. United States, 63 S.Ct. 1375, 1389, 87 L.Ed.-June 21, 1943, Mr. Justice Douglas in a concurring opinion, referring to a line of cases under the Selective Service Act said: “But that line of authority holds that after induction he may obtain through habeas corpus a hearing on the legality of his classification by the draft board”. In note 2, following this sentence, are cited numerous cases arising under the Selective Service Act, including United States v. Embrey, D.C., 46 F.Supp. 916, 918, a case in this court where, after referring to the “Judicial Review of Selective Service Board Classifications by Habeas Corpus” — the George Washington Law Review, Vol. 10,827, it was said: “The effect of these cases as to the scope of judicial review of actions of Local Draft Boards is that the courts will not interfere with the action of the Board unless the classification order of the registrant under the Act has been made without a fair hearing, or the action of the Board has been arbitrary or capricious, or not based on substantial evidence. And this was the view taken by the Circuit Court of Appeals for this Fourth Circuit in a case under the 1917 Act. Arbitman v. Woodside, 4 Cir., 258 F. 441.” See also Goff v. United States, 4 Cir., 135 F.2d 610, 612; Rase v. United States, 6 Cir., 129 F.2d 204, 207; Baxley v. United States, 4 Cir., 134 F.2d 998, 999. Ex parte Stanziale, D.C.N.J., 49 F.Supp. 961, 962, was a habeas corpus case in which the petitioner had been inducted by order of his Local Board at a time when he was married and had one child. In ordering petitioner’s release the District Judge said — “The regulations issued for the guidance of local boards under the provisions of the" } ]

[ { "docid": "9881757", "title": "", "text": "however. There are sufficient decisions under the Selective Training and Service Act to make it clear that a man may submit to induction without losing his right to review by habeas corpus. It should be stated, in frankness, that the point has been assumed, rather than discussed by the courts. That fact, we believe, does not weaken the force of the decisions in showing the judicial attitude on the point. Harris v. Ross, 5 Cir., 1945, 146 F.2d 355; Smith v. United States, 4 Cir., 1945, 148 F.2d 288; United States ex rel. Reel v. Badt, 2 Cir., 1944, 141 F.2d 845; United States ex rel. Brandon v. Downer, 2 Cir., 1944, 139 F.2d 761; United States ex rel. Phillips v. Downer, 2 Cir., 1943, 135 F.2d 521; Bagley v. United States, 9 Cir., 1944, 144 F.2d 788 (dictum) ; United States v. Bowles, 3 Cir., 1944, 131 F.2d 818 (dictum); affirmed 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194; Drumheller v. Berks County Local Board No. 1, 3 Cir., 1942, 130 F.2d 610 (dictum) ; Rase v. United States, 6 Cir., 1942, 129 F.2d 204 (dictum). In the District Courts the principle has been recognized even more often than in the Circuit Courts. Ex Parte Stewart, D.C.Cal., 1942, 47 F.Supp. 410; United States ex rel. Bayly v. Reckord, D.C.Md., 1943, 51 F.Supp. 507; United States ex rel. Altieri v. Flint, D.C. Conn., 1943, 54 F.Supp. 889, affirmed 2 Cir., 142 F.2d 62; Micheli v. Paullin, D.C.N.J. 1943, 45 F.Supp. 687; United States ex rel. Mauro v. Downer, D.C.N.Y., 1943, 50 F.Supp. 412; In re Rogers, D.C.Tex., 1942, 47 F.Supp. 265. Both as a matter of broad principle and actual application habeas corpus is firmly rooted in the law as a post-induction remedy that is not defeated by the fact of obedience to orders by the inductee. The judgment of the District Court is affirmed. Directive of the Bureau of Navy Personnel, June 2,-1944, Circular Letter No. 11-44, provides for this method of induction. Selective Service Regulations, Section 615.43, provide in part: “Every paper pertaining to the registrant except" }, { "docid": "22240588", "title": "", "text": "material that: “ * * * Such local [draft] boards * * * shall have power within their respective jurisdictions to hear and determine, subject to the right of appeal to the appeal boards * * *, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe.” The courts have uniformly ruled that the findings whereon draft boards base their decisions are final and may not be disturbed by the courts unless it appears that the person affected thereby has not been afforded a full and fair hearing or unless the members of the local draft board acted contrary to law or abused the discretion reposed in them by the statute. United States ex rel. Pasciuto v. Baird, D.C.E.D.N.Y., 39 F.Supp. 411, 413; United States ex rel. Broker v. Baird, D.C.E.D.N.Y., 39 F.Supp. 392, 394; United States ex rel. Errichetti v. Baird, D.C.E.D.N.Y., 39 F.Supp. 388, 391, 392; United States ex rel. Filomio v. Powell, D.C.N.J., 38 F.Supp. 183, 189; Dick v. Tevlin, D.C.S.D.N.Y., 37 F.Supp. 836, 838. A similar rule had been evolved by court decision under the Selective Draft Act of 1917, 50 U.S.C.A. Appendix, § 201 et seq. Arbitman v. Woodside, 4 Cir., 258 F. 441, 442; United States ex rel. Pascher v. Kinkhead, 3 Cir., 250 F. 692, 694; Boitano v. District Board, D.C.N.D.Cal., 250 F. 812, 813. No jurisdiction is conferred upon the courts by the Selective Training and Service Act of 1940 50 U.S.C.A. Appendix, § 301 et seq., to review the findings of local draft boards. Shimola v. Local Board, D.C.N.D.Ohio, 40 F.Supp. 808, 810; Petition of Soberman, D.C.E.D.N.Y., 37 F.Supp. 522, 523. Here again the rule is similar to the construction placed upon the Selective Draft Act of 1917. See Ex parte Hutflis, D.C.W.D.N.Y., 245 F. 798, 799. Nor is the merit of the decision" }, { "docid": "6387106", "title": "", "text": "“irregularities 'characterized the conduct of this Local Board” but held that none of them was “such as to give the court the right to intrude or substitute its judgment for that of the Local Board under the type of proceedings brought by this petitioner.” Said Court quoted with approval United 'States ex reí. Pascher v. Kinkead, D.C., .248 F. 141, affirmed, 3 Cir., 250 F. 692: “It may be considered as settled beyond all ■question that Congress may make the decisions of the executive departments or subordinate officials thereof, to whom it has committed the execution of acts similar in their general nature to this, final on questions of fact which arise in administering such acts; and, when it has done so, the courts may disturb such decisions only when it appears that the party involved has not been afforded a full and fair hearing, or that the executive officers have ■acted contrary to law, or have manifestly abused the discretion committed to them by the statute.” It was not shown' herein that the registrant had not been afforded a full and fair hearing, that any of the boards acted contrary to law, or that they abused the discretion committed to them by the Selective Training and Service Act. One of the rare instances of release from the Armed Forces by writ of habeas corpus was Application of Greenberg, D.C., 39 F.Supp. 13. Said decision has been criticized in law reviews. In 30 California Law Review, 226, it was said: “The decision of the court in this matter could be questioned on the ground that the courts should give great weight to the judgment of the administrative board. * * * It is not surprising, therefore, that in United States ex rel. Errichetti v. Baird, D.C., 39 F.Supp. 388, a District Court refused to follow the holding of the court in the Greenberg case and sustained a local board’s ruling that a wife was not a dependent if she was capable of self-support.” In 10 George Washington Law Review, 828, 841, J. Robert Bullock, author of the article, commented: “Bearing" }, { "docid": "5953493", "title": "", "text": "protect against deprivation of liberty without due process of law. No legislative enactment may deprive them of that power. Arbitrary, dishonest action by draft authorities is not due process of law. But as we have pointed out, the processes of the draft authorities, whether fair or otherwise, are halted at the threshold of the liberty of individuals. Such authorities are not empowered to seize the person. These appellants do not claim that the draft authorities have encroached upon their liberty. They were at liberty when arrested under court process. If they had obeyed the direction of the Board’s order to report and had been then taken in charge, there would be a deprivation of liberty of judicial cognizance under the constitutional writ of habeas corpus which searches through all forms to the sufficiency of the cause of detention. It is not compatible with the non judicial nature, the necessities and the provisions of the Selective Service Act to receive evidence of wrongful classification on the trial of a registrant under Section 311 for refusal to perform. Such refusal is a crime. A man cannot turn the question of his military duty into a matter of court and jury inquiry by simply staying awáy from constituted authority — perhaps until the war is over. Such we understand to be the fair implication of the decision of the Supreme Court in Bowles v. United States, 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194. The judgments are affirmed. Dick v. Tevlin, D.C., 37 F.Supp. 836, 837; United States ex rel. Filomio v. Powell, D.C., 38 F.Supp. 183; United States ex rel. Broker v. Baird, D.C., 39 F. Supp. 392; United States ex rel. Pasciuto v. Baird, D.C., 39 F.Supp. 411; United States v. Newman, D.C., 44 F.Supp. 817; United States v. DiLorenzo, D.C., 45 F. Supp. 590; Ex parte Kelley, D.C., 48 F. Supp. 816; United States v. Goodwin, D.C., 49 F.Supp. 510; Goodwin v. Rowe, D.C., 49 F.Supp. 703; Meredith v. Carter, D.C., 49 F.Supp. 899; Bullard v. Local Board, D.C., 50 F.Supp. 192. United States v. Grieme, 3 Cir., 128" }, { "docid": "22240587", "title": "", "text": "refusing to obey the board’s order of induction and that therefore they were not guilty of willful violation of the Selective Service Act. The learned trial judge excluded the particular matter proffered in defense, refused to charge the jury, as requested, that if the registrants should have been classified under IV-D rather than IV-E, their failure to' comply with the draft board’s order of induction was not a violation of the Act, and instructed the jury to disregard that portion of the summation by defendants’ counsel wherein he argued to the same effect as his request for charge which had been refused. We think that the matter offered by the defendants, relating, as it did, to the draft board’s exercise of its discretion in its administration of the Selective Service Act, was wholly irrelevant and immaterial to the charge contained in the indictment and that the action of the trial court was proper. Section 10(a) (2) of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 310(a) (2), provides in part here material that: “ * * * Such local [draft] boards * * * shall have power within their respective jurisdictions to hear and determine, subject to the right of appeal to the appeal boards * * *, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe.” The courts have uniformly ruled that the findings whereon draft boards base their decisions are final and may not be disturbed by the courts unless it appears that the person affected thereby has not been afforded a full and fair hearing or unless the members of the local draft board acted contrary to law or abused the discretion reposed in them by the statute. United States ex rel. Pasciuto v. Baird, D.C.E.D.N.Y., 39 F.Supp. 411, 413; United States ex rel. Broker" }, { "docid": "9881758", "title": "", "text": "(dictum) ; Rase v. United States, 6 Cir., 1942, 129 F.2d 204 (dictum). In the District Courts the principle has been recognized even more often than in the Circuit Courts. Ex Parte Stewart, D.C.Cal., 1942, 47 F.Supp. 410; United States ex rel. Bayly v. Reckord, D.C.Md., 1943, 51 F.Supp. 507; United States ex rel. Altieri v. Flint, D.C. Conn., 1943, 54 F.Supp. 889, affirmed 2 Cir., 142 F.2d 62; Micheli v. Paullin, D.C.N.J. 1943, 45 F.Supp. 687; United States ex rel. Mauro v. Downer, D.C.N.Y., 1943, 50 F.Supp. 412; In re Rogers, D.C.Tex., 1942, 47 F.Supp. 265. Both as a matter of broad principle and actual application habeas corpus is firmly rooted in the law as a post-induction remedy that is not defeated by the fact of obedience to orders by the inductee. The judgment of the District Court is affirmed. Directive of the Bureau of Navy Personnel, June 2,-1944, Circular Letter No. 11-44, provides for this method of induction. Selective Service Regulations, Section 615.43, provide in part: “Every paper pertaining to the registrant except his Registration Card * * * shall be filed in his Cover Sheet * * This letter and accompanying documents are marked “Deft’s Ex. ‘A’, 12/7/44 H. T.”, but were not admitted in evidence despite this designation. However, the brief of the United States refers to these documents as though in evidence and in fact sent to appeal board by local board. Selective Service Regulations, Section 626.2, provide in part: “The local board may reopen and consider anew the classification of a registrant * * * upon the written request of the registrant * * *, if such request is accompanied by written information presenting facts not considered when the registrant was classified which, if true, would justify a change in the registrant’s classification * * * ” Selective Service Regulations, Section 627.13(b) provide in part: “In preparing * * * a summary [of the written information in registrant’s file], the local board should be careful to avoid the expression of any opinion concerning information in the registrant’s file and should refrain from including any" }, { "docid": "3111075", "title": "", "text": "read as follows: “§ 633.13 Classification when man is inducted. * * * “2. Amend the regulations by adding a new section to be known as § 633.13-1 to read as follows: “§ 633.13-1 Identification of man accepted for limited service but not inducted, (a) Upon receiving notice from the induction station that a selected man has been found acceptable for limited military service but is not immediately inducted, the local board will not change his classification but will identify him in all records by following his classification with the letter ‘(L).’ Such a registrant may again be forwarded to the induction station by the local board under instructions issued by the Director of Selective Service, (b) If the local board determines there has been a change in the status of such a registrant before he is again ordered to report for induction, it will reopen such registrant’s classification and classify him in the usual manner. “3. Amend the regulations by adding a new section to be known as § 633.13-2 to read as follows: “§ 633.13-2 Classification of man not accepted. “(a) Upon receiving notice from the induction station that a selected man has not been accepted because he is disqualified for service in the land or naval forces, the local board shall reopen his classification and classify him in Class IV-F unless he is a man who was honorably discharged from the land or naval forces * * What was done by the local board in classifying the petitioner in Class I-A(L) on August 23rd, and in refusing his appeal, complied with the letter and the spirit of this section as amended. No facts not previously considered by the board with respect to the petitioner’s status were offered as a basis for reopening his classification; we are not confronted with a problem in the exercise of discretion. Compare Ex parte Stanziale, D.C.N.J., 49 F.Supp. 961, reversed 3 Cir., 138 F.2d 312, certiorari denied 320 U.S. 797, 64 S.Ct. 267; United States v. Reckord, D.C.Md., 51 F.Supp. 507. The motives of the local board are somewhat impugned by intimations" }, { "docid": "22240590", "title": "", "text": "by a local draft board subject to court review upon writ of certiorari. (Allison v. Local Board, D.C.N.D.Cal., 43 F.Supp. 896) or upon writ of habeas corpus. United States ex rel. Troiani v. Heyburn, D.C.E.D.Pa., 245 F. 360, 362. However, a registrant who has been inducted pursuant to the Selective Service Act may, by writ of habeas corpus, obtain a judicial determination as to whether the local draft board acted in an arbitrary and capricious manner or denied the registrant a full and fair hearing. See United States ex rel. Pasciuto v. Baird, supra; United States ex rel. Errichetti v. Baird, supra; Application of Greenberg, D.C.N.J., 39 F.Supp. 13, 16; United States ex rel. Filomio v. Powell, supra, 38 F.Supp. at page 186; Dick v. Tevlin, supra. Whether a registrant is a minister of religion presents a question of fact which, from its very nature, is committed by the Act to the determination of the competent local draft board. Johnson v. United States, 8 Cir., 126 F.2d 242, 247. The only appeal from a finding of such nature is the appeal provided by the Act to the county appeal board. It is only a limited number of instances which involve primarily questions of dependency that registrants may appeal to the President; and the records in the instant cases do not present situations appropriate for appeal to the President. Persons obliged to register under the Selective Service Act are not entitled to exemption as a matter of right. The discretion to determine whether certain classes of registrants should be exempted or deferred is reposed by the Act in the President and the boards or agencies which he is further authorized to create for the purpose of administering the Act. In United States ex rel. Koopowitz v. Finley, D.C.S.D.N.Y., 245 F. 871, 877, which arose under the Selective Draft Act of 1917, the court said that: “Whether a person is a non-declarant alien or not is a question of fact, exactly the same as whether a person is a duly ordained minister of religion * * *, and the clear purpose of" }, { "docid": "20085751", "title": "", "text": "and it was their unanimous opinion that the selectee should be continued in Class 1-A and inducted. Pursuant to a notice, the selectee reported on June 4, 1941, took the oath of enlistment and is now in the Army of the United States at Camp Upton, Yaphank, New York. The selectee claims that the Local Board in placing him in classification 1-A and not 3-A acted in a capricious and arbitrary manner and that its conclusions were not sustained by substantial evidence. It is the respondent’s contention that this selectee was lawfully selected for service and has been duly and regularly inducted into the Army under the provisions of the Selective Training and Service Act of 1940; and that the Board did not act capriciously or arbitrarily in arriving at its determination, but on the contrary its conclusion was sustained by the substantial evidence of the case record. The Selective Training and Service Act of 1940, Section 10 (a), Subsection (2), 50 U.S.C.A.Appendix, § 310 (a) (2), provides: “* * * Such local boards, under rules and regulations prescribed by the President, shall have power within their respective jurisdictions to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe. * * *” Under a similar section, a number of cases arose, which have been reviewed in United States ex rel. Filomio v. Powell et al., D.C., 38 F.Supp. 183, 188, which states at page 188: “A number of cases arose following the enactment of the Selective Service Act of 1917, 50 U.S.C.A. § 226 note, in which use was sought to be made of the writs of habeas corpus for release from the army. Among them is the case of United States v. Kinkead, D. C, 248" }, { "docid": "23364450", "title": "", "text": "But where, as here, the registrant’s initial status as a minister is in question, evidence concerning his qualifications is quite admissible on the issue of the good faith and truth of the original claim of exemption. Order affirmed. Like the present Act the Selective Draft Act of 1917, 50 U.S.C.A.Appendix, § 204, provided that the decisions of district hoards should be “final” except for the appeal to be provided by presidential regulation. See also United States ex rel. Koopowitz v. Finley, D.C.S.D.N.Y., 245 F. 871; Ex parte Graber, D.C.N.D.Ala., 247 F. 882; United States ex rel. Pascher v. Kinkead, 3 Cir., 250 F. 692; Franke v. Murray, 8 Cir., 248 F. 865, L.R.A. 1918E, 1015; Brown v. Spelman, D.C.E.D.N.Y., 254 F. 215; Napore v. Rowe, 9 Cir., 256 F. 832; cf. United States v. Grieme, 3 Cir., 128 F.2d 811; Goff v. United States, 4 Cir., 135 F.2d 610, 611; Ex parte Cohen, D.C.E.D.Va., 254 F. 711; Application of Greenberg, D.C.N.J., 39 F.Supp. 13; Shimola v. Local Board No. 42 for Cuyahoga County, D.C.N.D.Ohio, 40 F.Supp. 808; Ex parte Beck, D.C.Mont., 245 F. 967. See also United States ex rel. Errichetti v. Baird, D.C.E.D.N.Y., 39 F.Supp. 388; United States ex rel. Broker v. Baird, D.C.E.D.N.Y., 39 F.Supp. 392; United States ex rel. Pasciuto v. Baird, D.C.E.D.N.Y., 39 F.Supp. 411; United States v. Newman, D.G.E.D.Ill., 44 F.Supp. 817; Ex parte Stewart, D.C.S.D.Cal., 47 F.Supp. 415; cf. Chase, C. J,. dissenting in United States ex rel. Phillips v. Downer, 2 Cir., 135 F.2d 521, 526. There seem to have been only three cases under the Act of 1917 where release of selectees from the Army was ordered by the courts, Arbitman v. Woodside, Ex parte Cohen, and Ex parte Beck, supra. See 10 Geo.Wash.L.Rev. 827, supra, and Ex parte Stanziale, supra, 138 F.2d at page 314. The latter case, which reverses D.C., 49 F.Supp. 961, points out the few cases under the present act where release has been ordered. In United States ex rel. Phillips v. Downer, supra, release was ordered for misinterpretation of the statute; in United States ex rel. Reel" }, { "docid": "5953494", "title": "", "text": "perform. Such refusal is a crime. A man cannot turn the question of his military duty into a matter of court and jury inquiry by simply staying awáy from constituted authority — perhaps until the war is over. Such we understand to be the fair implication of the decision of the Supreme Court in Bowles v. United States, 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194. The judgments are affirmed. Dick v. Tevlin, D.C., 37 F.Supp. 836, 837; United States ex rel. Filomio v. Powell, D.C., 38 F.Supp. 183; United States ex rel. Broker v. Baird, D.C., 39 F. Supp. 392; United States ex rel. Pasciuto v. Baird, D.C., 39 F.Supp. 411; United States v. Newman, D.C., 44 F.Supp. 817; United States v. DiLorenzo, D.C., 45 F. Supp. 590; Ex parte Kelley, D.C., 48 F. Supp. 816; United States v. Goodwin, D.C., 49 F.Supp. 510; Goodwin v. Rowe, D.C., 49 F.Supp. 703; Meredith v. Carter, D.C., 49 F.Supp. 899; Bullard v. Local Board, D.C., 50 F.Supp. 192. United States v. Grieme, 3 Cir., 128 F. 2d 811; Rase v. United States, 6 Cir., 129 F.2d 204; Fletcher v. United States, 5 Cir., 129 F.2d 262; Checinski v. United States, 6 Cir., 129 F.2d 461; Buttecali v. United States, 5 Cir., 130 F.2d 172; Drumheller v. Berks County Local Board, 3 Cir., 130 F.2d 610; Baxley v. United States, 4 Cir., 134 F.2d 998; United States ex rel. Phillips v. Dawner, 2 Cir., 135 F.2d 521; Goff v. United States, 4 Cir., 135 F.2d 610; United States v. Mroz, 7 Cir., 136 F.2d 221; Seele v. United States, 8 Cir., 133 F.2d 1015." }, { "docid": "23364441", "title": "", "text": "States, 6 Cir., 129 F.2d 461, 462; United States v. Buttecali, D.C.S.D.Tex., 46 F.Supp. 39, 44, affirmed Buttecali v. United States, 5 Cir., 130 F.2d 172; United States v. Pace, D.C.S.D.Tex., 46 F.Supp. 316, or even more strictly whether the boards have considered all the evidence presented to them, without regard to what their conclusions may be. Ex parte Stanziale, 3 Cir., 138 F.2d 312, 313-315, certiorari denied Stanziale v. Paullin, 320 U.S. 797, 64 S.Ct. 267; Crutchfield v. United States, 9 Cir., 142 F.2d 170, 173, 174; Note, Judicial Review of Selective Service Board Classifications by Habeas Corpus, 10 Geo.Wash.L.Rev. 827, 837, 838; cf. Angelus v. Sullivan, supra, 246 F. at pages 62, 63; 30 Geo.L.J. 636; 32 Geo.L.J. 385; 36 Ill.L.Rev. 310, 352; 38 Ill.L.Rev. 332; 14 Miss.L.J. 445, 465-476. These different formulas represents at most only slight differences of degree of restriction of judicial review; indeed, it may be concluded that the exact formula is not of the greatest importance, since under all the degree of finality accorded actions of local boards during both wars has been very great. In this circuit, however, we seem practically committed to the test of whether the local hoard had any evidence before it to sustain its result; indeed, in United States ex rel. Brandon v. Downer, 2 Cir., 139 F.2d 761, 765, we practically said as much in holding that the appeal must have been sustained except for a single incident shown in the evidence, which in fact the board’s hearing officer regarded differently than did the board and as to which a majortiy of the court “would have decided otherwise, had we been members of the Board.” With this case may be compared United States ex rel. Reel v. Badt, 2 Cir., 141 F.2d 845, where in reversing dismissal of a writ we went so far as to require a local board to show whether it proceeded on its own finding of facts or on its interpretation of law applicable to the findings of its hearing officer; United States ex rel. Phillips v. Downer, 2 Cir., 135 F.2d 521," }, { "docid": "22240589", "title": "", "text": "v. Baird, D.C.E.D.N.Y., 39 F.Supp. 392, 394; United States ex rel. Errichetti v. Baird, D.C.E.D.N.Y., 39 F.Supp. 388, 391, 392; United States ex rel. Filomio v. Powell, D.C.N.J., 38 F.Supp. 183, 189; Dick v. Tevlin, D.C.S.D.N.Y., 37 F.Supp. 836, 838. A similar rule had been evolved by court decision under the Selective Draft Act of 1917, 50 U.S.C.A. Appendix, § 201 et seq. Arbitman v. Woodside, 4 Cir., 258 F. 441, 442; United States ex rel. Pascher v. Kinkhead, 3 Cir., 250 F. 692, 694; Boitano v. District Board, D.C.N.D.Cal., 250 F. 812, 813. No jurisdiction is conferred upon the courts by the Selective Training and Service Act of 1940 50 U.S.C.A. Appendix, § 301 et seq., to review the findings of local draft boards. Shimola v. Local Board, D.C.N.D.Ohio, 40 F.Supp. 808, 810; Petition of Soberman, D.C.E.D.N.Y., 37 F.Supp. 522, 523. Here again the rule is similar to the construction placed upon the Selective Draft Act of 1917. See Ex parte Hutflis, D.C.W.D.N.Y., 245 F. 798, 799. Nor is the merit of the decision by a local draft board subject to court review upon writ of certiorari. (Allison v. Local Board, D.C.N.D.Cal., 43 F.Supp. 896) or upon writ of habeas corpus. United States ex rel. Troiani v. Heyburn, D.C.E.D.Pa., 245 F. 360, 362. However, a registrant who has been inducted pursuant to the Selective Service Act may, by writ of habeas corpus, obtain a judicial determination as to whether the local draft board acted in an arbitrary and capricious manner or denied the registrant a full and fair hearing. See United States ex rel. Pasciuto v. Baird, supra; United States ex rel. Errichetti v. Baird, supra; Application of Greenberg, D.C.N.J., 39 F.Supp. 13, 16; United States ex rel. Filomio v. Powell, supra, 38 F.Supp. at page 186; Dick v. Tevlin, supra. Whether a registrant is a minister of religion presents a question of fact which, from its very nature, is committed by the Act to the determination of the competent local draft board. Johnson v. United States, 8 Cir., 126 F.2d 242, 247. The only appeal from a finding" }, { "docid": "3270178", "title": "", "text": "that the action of the District Court was erroneous. Reversed. Ex parte Catanzaro, 3 Cir., 138 F.2d 100, decided by this Court September 23, 1943. Drumheller v. Berks County Local Board No. 1, 3 Cir., 1942, 130 F.2d 610. See authorities cited in Ex parte Catan-zaro, supra. One writer has found only three cases involving wrongful classification under the Act of 1917 wherein the courts ordered the selectees released from the Army: Arbitman v. Woodside, 4 Cir., 1919, 258 F. 441; Ex parte Cohen, D.C.E.D.Va. 1918, 254 F. 711; Ex parte Beck, D.C. Mont.1917, 245 F. 967. Note, Judicial Review of Selective Service Board Classifications by Habeas Corpus (1942) 10 Geo.Wash.L.Rev. 827, reprinted in 2 Pike & Fischer, Administrative Law 386. The appellant states in his brief that there have been only three cases under the 1940 Act in which the courts have ordered the release of a man inducted into the armed forces. Application of Greenberg, D.C.N.J.1941, 39 F.Supp. 13; United States ex rel. Phillips v. Gol. Downer, supra; and the present case. See also, United States ex rel. Bayly v. Reckord, 51 F.Supp. 507, decided on August 16, 1943 in the District Court of Maryland, abstracted in 12 L.W. 2110. Note, Judicial Review of Selective Service Board Classifications by Habeas Corpus, supra, at p. 830. See Selective Service Regulations, detailing the administrative procedures. G OH War Law Service, Statutes, p. 18,-601 et seq. § 10(a) (2) of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix § 310(a) (2). See the Note in Geo. Wash. L. Rev., supra. Chin Tow v. United States, 1909, 208 U.S. 8, 13, 28 S.Ct. 201, 52 L.Ed. 369. See Chin Yow v. United States, supra. As amended July 11, 1942, 7 Fed. Reg. 5342. “§ 622.31 Glass III-A: Mam deferred by reason of dependency. In Class III-A shall be placed any registrant who has one or more dependents as defined in § 622.32 and who is not engaged in a civilian activity which is necessary to war production or which is supporting the war effort. (For exceptions see § 622.-36.)”" }, { "docid": "16947357", "title": "", "text": "to the courts, and bave cited and quoted tbe cases arising under tbe 1917 Act [50 U.S.C.A. Appendix § 201 et seq.], as authority. Thus, the decisions of tbe local boards are final unless tbe party was denied a fair bearing, or tbe executive officers acted contrary to law, abused their discretion, or lacked jurisdiction (Shimola v. Local Board [D.C.] 40 F.Supp. 808; United States ex rel. Pasciuto v. Baird [D.C.] 39 F.Supp. 411; United States ex rel. Broker v. Baird [D.C.] 39 F.Supp. 392; United States ex rel. Errichetti v. Baird [D.C.] 39 F.Supp. 388; Petition of Soberman [D.C.] 37 F.Supp. 522; United States ex rel. Filomio v. Powell [D.C.] 38 F.Supp. 183). It has once again been held that relief may not be had at equity (Totus v. United States [D.C.] 39 F.Supp. 7; Stone v. Christensen [D.C.] 36 F.Supp. 739), and that a writ of habeas corpus will not issue except where petitioner shows that the local board acted in an arbitrary or capricious manner or denied a fair hearing (United States ex rel. Ursitti v. Baird [D.C.] 39 F.Supp. 872; United States ex rel. Errichetti v. Baird [D.C.] 39 F.Supp. 388). Certiorari, moreover, has again been ruled out as a method of proceeding against a local board (Petition of Soberman [D.C.] 37 F.Supp. 522).”" }, { "docid": "23364451", "title": "", "text": "F.Supp. 808; Ex parte Beck, D.C.Mont., 245 F. 967. See also United States ex rel. Errichetti v. Baird, D.C.E.D.N.Y., 39 F.Supp. 388; United States ex rel. Broker v. Baird, D.C.E.D.N.Y., 39 F.Supp. 392; United States ex rel. Pasciuto v. Baird, D.C.E.D.N.Y., 39 F.Supp. 411; United States v. Newman, D.G.E.D.Ill., 44 F.Supp. 817; Ex parte Stewart, D.C.S.D.Cal., 47 F.Supp. 415; cf. Chase, C. J,. dissenting in United States ex rel. Phillips v. Downer, 2 Cir., 135 F.2d 521, 526. There seem to have been only three cases under the Act of 1917 where release of selectees from the Army was ordered by the courts, Arbitman v. Woodside, Ex parte Cohen, and Ex parte Beck, supra. See 10 Geo.Wash.L.Rev. 827, supra, and Ex parte Stanziale, supra, 138 F.2d at page 314. The latter case, which reverses D.C., 49 F.Supp. 961, points out the few cases under the present act where release has been ordered. In United States ex rel. Phillips v. Downer, supra, release was ordered for misinterpretation of the statute; in United States ex rel. Reel v. Badt, 2 Cir., 141 F.2d 845, and United States ex rel. De Graw v. Toon, D.C.E.D.N.Y., 52 F.Supp. 170, further proceedings only were required, which also is the substantial effect of United States ex rel. Beye v. Downer, 2 Cir., 143 F.2d 125, and United States ex rel. Bayly v. Reckord, D.C.Md., 51 F.Supp. 507, while Application of Greenberg, supra, appears to be a reversal of a board classification. Relator’s counsel herein refers also to a recent unreported case in the District Court for the District of Rhode Island said to be similar to the case at bar. The cases of Bowles v. United States, 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194, and Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, did not pass upon the issue; ef. Mr. Justice Douglas concurring in Hirabayashi v. United States, 320 U.S. 81, 108, 63 S.Ct. 1375, 87 L.Ed. 1774." }, { "docid": "23364449", "title": "", "text": "personal religious training and beliefs, but for the disruption of public worship and religious solace to the people at. large which would be caused by their induction. Hence if a registrant is a minister of religion by ordination only as a mere incident of his past history, and not by actual practice, he does not fall within the intent of the exemption. The regulation was followed in In re Rogers, supra; and cf. also Ex parte Stewart, supra. Relator finally urges that the evidence received by the advisory panel concerning his intellectual qualifications as a rabbi was improperly considered by the selective service boards, which thus were guilty of an error of law similar to that for which we ordered the release of the relator in United States ex rel. Phillips v. Downer, supra. Admittedly the only power of the boards under the statute is to pass on the question of whether a registrant is in fact a “regular or duly ordained” minister of religion. If he is, his qualifications so to act are immaterial. But where, as here, the registrant’s initial status as a minister is in question, evidence concerning his qualifications is quite admissible on the issue of the good faith and truth of the original claim of exemption. Order affirmed. Like the present Act the Selective Draft Act of 1917, 50 U.S.C.A.Appendix, § 204, provided that the decisions of district hoards should be “final” except for the appeal to be provided by presidential regulation. See also United States ex rel. Koopowitz v. Finley, D.C.S.D.N.Y., 245 F. 871; Ex parte Graber, D.C.N.D.Ala., 247 F. 882; United States ex rel. Pascher v. Kinkead, 3 Cir., 250 F. 692; Franke v. Murray, 8 Cir., 248 F. 865, L.R.A. 1918E, 1015; Brown v. Spelman, D.C.E.D.N.Y., 254 F. 215; Napore v. Rowe, 9 Cir., 256 F. 832; cf. United States v. Grieme, 3 Cir., 128 F.2d 811; Goff v. United States, 4 Cir., 135 F.2d 610, 611; Ex parte Cohen, D.C.E.D.Va., 254 F. 711; Application of Greenberg, D.C.N.J., 39 F.Supp. 13; Shimola v. Local Board No. 42 for Cuyahoga County, D.C.N.D.Ohio, 40" }, { "docid": "3119970", "title": "", "text": "courts. Drumheller should have delivered himself to the authorities as all citizens of this country in like position are required by law to do. He then could have raised the question by writ of habeas corpus of whether his local board had acted in an arbitrary or capricious manner or denied him a full and fair hearing. He says that for him to deliver himself even into the hands of civilians for civilian labor would be a breach of his covenant with God. We do not question Drumheller’s sincerity in making such a statement, but he is none the less subject to all the laws of the United States which govern other men in their duty to their country. The writ of certiorari will not lie. Accordingly the order of the court below is affirmed. Counsel for the petitioner and the United States have stated to this court that the petitioner is already serving a sentence imposed by the District Court of the United States for the Eastern District of Pennsylvania for failure to obey the Board’s assignment. See United States v. Grieme, supra; United States ex rel. Pasciuto v. Baird, D.C., 39 F.Supp. 411, 413; United States ex rel. Errichetti v. Baird, D.C., 39 F.Supp. 388, 391, 392; Application of Greenberg, D.C., 39 F.Supp. 13, 16; United States ex rel. Filomio v. Powell, D.C., 38 F.Supp. 183, 186, and Dick v. Tevlin, D.C., 37 F.Supp. 836, 838. The consequences of the success of tlie appellant’s argument would be sweeping. He could not be compelled to obey a subpoena to respond for jury duty or be compelled to become a member of a posse comitatus or be required to undertake any other duty which citizens must perform in civil life. Organized society could not function if many persons were permitted to have the privilege of refusing to do their duty as citizens when called upon because of covenants believed by them to have been made with God." }, { "docid": "16947356", "title": "", "text": "F. 360; Napore v. Rowe, 9 Cir., 256 F. 832. Ex parte Hutflis, D.C., 245 F. 798; United States ex rel. Bartalini v. Mitchell, D.C., 248 F. 997; Ex parte Beck, D.C., 245 F. 967; Ex parte Fuston, D.C., 253 F. 90. Ex parte Platt, D.C., 253 F. 413. In re Kitzerow, D.C., 252 F. 865; Ex parte Beales, D.C., 252 F. 177. For the most recent case denying the writ see Drumheller v. Berks County Local Board No. 1, etc., D.C., 43 F.Supp. 881. M. Mullally, Jr., writing in 28 Virginia Law Review at page 628, gives a summation of the matter. He states: “The cases decided under the military draft law of 1917, therefore, reveal that not only was it difficult to gain entry to the court house, but that once there the remedies available were extremely circumscribed. As was to be expected, the cases arising under the Selective Service and Training Act of 1940 bave followed tbe rules laid down in tbe earlier decisions, and liave adopted tbe same standards for access to the courts, and bave cited and quoted tbe cases arising under tbe 1917 Act [50 U.S.C.A. Appendix § 201 et seq.], as authority. Thus, the decisions of tbe local boards are final unless tbe party was denied a fair bearing, or tbe executive officers acted contrary to law, abused their discretion, or lacked jurisdiction (Shimola v. Local Board [D.C.] 40 F.Supp. 808; United States ex rel. Pasciuto v. Baird [D.C.] 39 F.Supp. 411; United States ex rel. Broker v. Baird [D.C.] 39 F.Supp. 392; United States ex rel. Errichetti v. Baird [D.C.] 39 F.Supp. 388; Petition of Soberman [D.C.] 37 F.Supp. 522; United States ex rel. Filomio v. Powell [D.C.] 38 F.Supp. 183). It has once again been held that relief may not be had at equity (Totus v. United States [D.C.] 39 F.Supp. 7; Stone v. Christensen [D.C.] 36 F.Supp. 739), and that a writ of habeas corpus will not issue except where petitioner shows that the local board acted in an arbitrary or capricious manner or denied a fair hearing (United States" }, { "docid": "3270177", "title": "", "text": "men with wives and children, when prior lists of available men have been exhausted and additional men are needed to fill quotas. The regulations and orders of the Director of Selective Service make it plain that there has been no inflexible rule of classification of men who claim deferment by reason of dependency. Many factors beyond Stanziale’s personal status were of major importance and we cannot see where the Board’s action was not in compliance with Selective Service Regulations. Petitioner’s bare allegation in her complaint that “As far as your petitioner has been able to ascertain, the Local Board with whom Adolph Stanziale is registered, has not called for induction any other married man.” does not aid her case. Obviously what is within her knowledge is not necessarily the fact. Even if it were, the reason married men prior to Stanziale were not called may, for aught we know, have been that they had deferments for reasons other than dependency. Our conclusion is that the petitioner has not shown a case for judicial relief and that the action of the District Court was erroneous. Reversed. Ex parte Catanzaro, 3 Cir., 138 F.2d 100, decided by this Court September 23, 1943. Drumheller v. Berks County Local Board No. 1, 3 Cir., 1942, 130 F.2d 610. See authorities cited in Ex parte Catan-zaro, supra. One writer has found only three cases involving wrongful classification under the Act of 1917 wherein the courts ordered the selectees released from the Army: Arbitman v. Woodside, 4 Cir., 1919, 258 F. 441; Ex parte Cohen, D.C.E.D.Va. 1918, 254 F. 711; Ex parte Beck, D.C. Mont.1917, 245 F. 967. Note, Judicial Review of Selective Service Board Classifications by Habeas Corpus (1942) 10 Geo.Wash.L.Rev. 827, reprinted in 2 Pike & Fischer, Administrative Law 386. The appellant states in his brief that there have been only three cases under the 1940 Act in which the courts have ordered the release of a man inducted into the armed forces. Application of Greenberg, D.C.N.J.1941, 39 F.Supp. 13; United States ex rel. Phillips v. Gol. Downer, supra; and the present case. See" } ]

[ { "docid": "149735", "title": "", "text": "have different meanings when applied in different legal contexts. This is such a case. In Marrese, we noted that the elements required for a cause of action under section 1983 differ from the elements required for state action under the antitrust laws. Marrese, 748 F.2d at 395 n. 25. The test for determining whether state action is present for purposes of section 1983 has been delineated by the Supreme Court in a number of cases. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Although subject to various formulations, the “ultimate issue in determining whether a person is subject to suit under section 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights ‘fairly attributable to the State?’ ” Rendell-Baker, 457 U.S. at 838, 102 S.Ct. at 2769; see also Gramenos v. Jewel Companies, 797 F.2d 432, 435 (7th Cir.1986). The state normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the state. Hin-man v. Lincoln Towing Service, Inc., 771 F.2d 189, 192 (7th Cir.1985) (citing Blum, 457 U.S. at 1004, 102 S.Ct. at 2785). The decision at issue here, the decision to terminate staff privileges at a private hospital, cannot be fairly attributed to the state. Only private actors are responsible for the decision to terminate Dr. Ezpeleta. It is true that the decision was made within the context of the statutorily mandated Indiana peer medical review process. This fact, however, is not enough to create section 1983 liability for decisions that “ultimately turn on medical judgments made by private parties according to professional standards that are not established by the" } ]

[ { "docid": "9995445", "title": "", "text": "mental hospitals. See Harvey, 949 F.2d at 1131; see also Spencer v. Lee, 864 F.2d 1376, 1381 (7th Cir.1989), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). In refuting an argument that such a commitment was a public function, the court in Harvey noted: At most, the Georgia statute functions as a licensing provision enabling the hospital to receive mental patients; licensing and regulation are not enough to transform private hospitals into state actors for Section 1983 purposes. See Harvey, 949 F.2d at 1132. The voluntary admission of Lewis to Brookhaven and the subsequent determinations by defendants to detain Lewis are not functions exclusively reserved to the State of Texas. While persons can be committed to a state-owned hospital, or pursuant to a state court’s order, such possibilities do not transform civil commitment into a function exclusively reserved to the State. In Spencer, an action involving a private involuntary commitment, the court rejected the plaintiff’s public function argument by stating, But, a private commitment is no more state action than a citizen’s arrest, the repossession of chattels, or the ejection of trespassers is. The statutes authorizing or constraining these private activities may or may not be constitutional ... the activities themselves remain private ____ Spencer, 864 F.2d at 1381. C. State Coercion or Encouragement: The final means by which a private party can be held to have functioned as a state actor occurs when the state has “exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the state.” Blum, 457 U.S. at 1004, 102 S.Ct. at 2785; Flagg Bros. 436 U.S. at 166, 98 S.Ct. at 1738; see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1971). Lewis apparently asserts that the state, through the voluntary commitment statutes, provided such significant encouragement to defendants that their actions were deemed to be actions of the state. The court, however, again refuses to conclude that the mere existence of the voluntary commitment" }, { "docid": "1796333", "title": "", "text": "previously outlined the various tests that the Supreme Court employs to determine whether a private party has acted under color of state law. Bass v. Parkwood, 180 F.3d 234, 241-43 (5th Cir.1999) (applying the tests to hold that a private mental institution did not act under color of state law by committing the plaintiff). According to the public function test, a private entity acts under color of state law when the entity performs a function which is “exclusively reserved to the state.” Flagg Bros., 436 U.S. at 157-58, 98 S.Ct. 1729. (internal quotations omitted); Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.1989). The state compulsion (or coercion) test holds the state responsible “for a private decision only when [the state] has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (internal quotations omitted). Similarly, the nexus or state action test finds state action where the state has “so far insinuated itself into a position of interdependence with the [private actor] that it was a joint participant in the enterprise.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357-58, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); see also Lu-gar, 457 U.S. at 941-42, 102 S.Ct. 2744 (1982). Richard argues that Appellees acted under color of state law based on the state action test. He relies on Lugar, in which the Supreme Court found “joint participation” between a private actor and the state. 457 U.S. at 942, 102 S.Ct. 2744. In Lugar, a creditor allegedly failed to meet the statutory requirements for enforcing attachment of the debtor’s property, yet state officials seized the property without allowing the debtor to defend the action. Id. at 925, 102 S.Ct. 2744. The Court found joint participation because the state officials committed an ex parte action at the request of a private party; Id. at 942, 102 S.Ct. 2744. In reaching this conclusion, the Court stated that to find state action under §" }, { "docid": "2995871", "title": "", "text": "1971, 32 L.Ed.2d 627 (1972). . See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157-66, 98 S.Ct. 1729, 1733-39, 56 L.Ed.2d 185 (1978) (implicitly recognizing that state action could be found under any alternative rationale). See also, Schneider, The 1982 State Action Trilogy: Doctrinal Contraction, Confusion, and a Proposal for Change, 60 Notre Dame L.Rev. 1150, 1177 (1985) (noting that, although it is “unclear from the Blum decision whether the Court now demands that all three ‘principles’ ... be satisfied in a single case ... [,] [i]t would be a significant departure from precedent for the Court to now require that all three requirements be met in order to establish state action.\") Cf. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982) (unclear \"[wjhether these different tests are actually different in operation or simply different ways of characterizing the necessarily fact-bound inquiry that confronts the Court in such a situation....\"). . This case does not satisfy the “nexus test,\" however. Under the nexus analysis, a government \" ‘can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.' ” San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 546, 107 S.Ct. 2971, 2986, 97 L.Ed.2d 427 (1987), quoting Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. at 2786. Indeed, \"the party seeking to establish that action of a private party violated the Constitution must be able to point to the specific act or actions of the government which in fact motivated the private action.” Ponce, 760 F.2d at 378 (citation omitted); see also Cohen v. President and Fellows of Harvard College, 568 F.Supp. 658, 660 (D.Mass.1983) (Tauro, I.) (nexus analysis \"focus[es] on whether the challenged action of the private entity was compelled or influenced by the government.”). In the present case, plaintiffs have not offered evidence of such a high degree of involvement by the City of" }, { "docid": "20783517", "title": "", "text": "interest does not in itself constitute federal action. Id. at 545, 107 S.Ct. at 2985. The powers exercised by Freddie Mac in participating in the secondary market for mortgages and improving access to home loans for low- and moderate-income families hardly qualify as powers “traditionally associated with sovereignty, such as eminent domain”. Jackson, 419 U.S. at 353, 95 S.Ct. at 454. Cf. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158, 98 S.Ct. 1729, 1734, 56 L.Ed.2d 185 (1978) (“While many functions have been traditionally performed by governments, very few have been ‘exclusively reserved to the State’”.). Indeed, Freddie Mac’s functions would not even seem to rise to the level of functions such as “education, fire and police protection, and tax collection”, functions Flagg Bros, expressly declined to decide were sufficiently exclusive that a private actor’s performance of such functions would constitute state action. 436 U.S. at 163-64, 98 S.Ct. at 1737-38. 3. Coercion or Encouragement The final element in determining federal action by a federally chartered corporation is whether, with regard to the challenged deci sion, the government “ ‘... has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [government]’ ”. San Francisco Arts & Athletics, 483 U.S. at 546, 107 S.Ct. at 2986 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982)). Again, however,, appellants point to no evidence suggesting that the federal government in any way coerced or encouraged Freddie Mac to terminate them as seller/servicers. The fact that the government requires Freddie Mae to report on the race and gender of its seller/servicers might be some encouragement (though perhaps not significant enough for the federal action test) for the corporation to terminate seller/servicers on the basis of one of those characteristics, but ABM made absolutely no allegations that the termination challenged here was made for racial or gender reasons. Cf. Liberty Mortgage, 822 F.Supp. at 959 (“[Plaintiff does not allege that the federal government in any way compelled Freddie Mac’s action." }, { "docid": "13472548", "title": "", "text": "not prescribe the structure of state government. United Beverage Co. v. Indiana Alcoholic Beverage Comm’n, 760 F.2d 155 (7th Cir.1985). Who does the state’s business is the state’s actor. At the opposite extreme is the situation where the state decides to reduce the scope of government. Suppose the state owned a railroad, and decided to sell it to a private person. Would the new owner be deemed a state actor under the Constitution, on the ground that the state had “deputized” him to operate “its” railroad? He would not. The scope of government is not fixed; deregulation does not create a host of state actors in the private sector, like the moraine that marks the farthest advance of a glacier. Certain powers, however, are “traditionally the exclusive prerogative of the State,” and their exercise by private persons is state action. Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982). Marsh can be understood in this light — as a case not of deregulation, but of the delegation of public powers to private actors. We have to situate the present case in this grid. It is not a case of governmental encouragement or direction of private persons; and “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, supra, 457 U.S. at 1004, 102 S.Ct. at 2786. See also Tunca v. Lutheran General Hospital, 844 F.2d 411, 414 (7th Cir.1988); Ezpeleta v. Sisters of Mercy Health Corp., 800 F.2d 119, 122 (7th Cir.1986). Spencer does not suggest that the relevant provisions of the Mental Health Code were enacted because the state wants to encourage commitments, any more than state repossession laws are passed because states want to encourage creditors to repossess their debtors’ goods. See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). His argument is that the commitment of the mentally ill," }, { "docid": "3951397", "title": "", "text": "the deprivation of a right secured by the Constitution or laws of the United States and 2) the deprivation was caused by a person acting under color of state law. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978); Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir.1987) (to sustain a § 1983 claim, plaintiffs must show that: 1) the conduct at issue was under color of state law; 2) the conduct caused a deprivation of constitutional rights; and 3) the deprivation occurred without due process of law). On appeal, Appellants urge that the district court erred in resolving certain disputed facts in favor of the WRC and in concluding that the WRC was not acting under color of state law. We will address the second assignment of error first because Appellants’ failure to show an essential element of their case will render any factual disputes immaterial. Celotex, supra. WRC is a private, non-profit corporation. In order for a private party’s conduct to be under color of state law, it must be “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). The actions of private individuals may be under color of state law when “significant state involvement attaches to the action.” Wagner v. Metropolitan Nashville Airport Authority, 772 F.2d 227, 229 (6th Cir.1985). The required nexus between the State and the private party may be shown where the State has “exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982). Appellants argue that WRC’s participation in the state CWEP program provides the “significant state involvement” that exposes private actors to liability under § 1983. Appellants note that the DSS and WRC had a contractual relationship under the CWEP worksite agreement. Appellants contend that Miller was a dual employee of the State and the CLC. Arntz" }, { "docid": "16099671", "title": "", "text": "so that the action “may be fairly treated as that of the State itself.” Blum, 457 U.S. at 1004, 102 S.Ct. at 2786 (quoting Jackson, 419 U.S. at 351, 95 S.Ct. at 453-54). Thus, the state must somehow be responsible for the allegedly unlawful actions taken by the private party. Blum, 457 U.S. at 1004, 102 S.Ct. at 2786. The Supreme Court has taken a flexible approach to determining when a state is responsible for the acts of private persons, adopting a variety of “tests” dependent on the particular facts of each case. The factual circumstances supporting a finding of state action, however, can generally be categorized into two broad groups. The first group includes situations where a state effectively directs, controls, or encourages the actions of a private party. In these cases, “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Id.; see, e.g., Hinman v. Lincoln Towing Serv., 771 F.2d 189, 192-93 (7th Cir.1985); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 166, 98 S.Ct. 1729, 1738-39, 56 L.Ed.2d 185 (1978); Jackson, 419 U.S. at 357, 95 S.Ct. at 456-57. Wade does not attempt to rely on this test of state action. Indeed, he presents no evidence that CHA compelled or encouraged Byles to shoot him. Instead, Wade predicates his claim of state action on the second general scenario, in which a state delegates a “public function” to a private entity. See, e.g., Blum, 457 U.S. at 1005, 102 S.Ct. at 2786; Jackson, 419 U.S. at 352-53, 95 S.Ct. at 454-55; Spencer v. Lee, 864 F.2d 1376, 1379 (7th Cir.1989) (en banc), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). The simple fact that a private entity performs a function that serves the public does not transform its conduct into state aetion. Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2772, 73 L.Ed.2d 418 (1982). A private entity may" }, { "docid": "1796332", "title": "", "text": "Richard raises are irrelevant. Because Richard’s § 1983 claim merely serves as an instrument for evading Rooker-Feldman, that doctrine bars his claim. To state a claim under § 1983, a plaintiff must allege facts tending to show that the defendant has acted “under color of state law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Flagg Bros. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). “[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Sullivan, 526 U.S. at 50, 119 S.Ct. 977 (internal quotations omitted). A plaintiff must show that the party charged with depriving the plaintiff of her federal right is an entity that can be fairly described as a state actor. Lugar, 457 U.S. at 937, 102 S.Ct. 2744. This Court has previously outlined the various tests that the Supreme Court employs to determine whether a private party has acted under color of state law. Bass v. Parkwood, 180 F.3d 234, 241-43 (5th Cir.1999) (applying the tests to hold that a private mental institution did not act under color of state law by committing the plaintiff). According to the public function test, a private entity acts under color of state law when the entity performs a function which is “exclusively reserved to the state.” Flagg Bros., 436 U.S. at 157-58, 98 S.Ct. 1729. (internal quotations omitted); Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.1989). The state compulsion (or coercion) test holds the state responsible “for a private decision only when [the state] has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (internal quotations omitted). Similarly, the nexus or state action test finds state" }, { "docid": "12120849", "title": "", "text": "the private party that could exercise state power through its ownership of Seven Fields Borough” because of its order holding the Borough could be incorporated. Appellants’ Brief at 14. We hold that this theory of state action is unsupportable as a matter of law. Recently, the Supreme Court held that Congress’ grant of a corporate charter to the United States Olympic Committee (USOC) does not render the USOC a government agent to whom the prohibitions of the Constitution apply. San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, — U.S.-, 107 S.Ct. 2971, 2984-85, 97 L.Ed.2d 427 (1987). The Court explained that “a government ‘normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [government].’” Id. 107 S.Ct. at 2986 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982)). Therefore, the mere fact that the Commonwealth of Pennsylvania performed no more than the wholly neutral and ministerial act of incorporating the Borough cannot alone transform Reilly’s status as a private person into that of a state actor. See Jackson v. Metropolitan Edison, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (mere fact that privately owned and operated electrical monopoly is subject to extensive state protection and regulation “does not by itself convert its action into that of the state”); see also Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (private school not state actor despite extensive state regulation and funding); cf. Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed. 2d 482 (1982) (private party invoking state statutory mechanism to attach and sequester disputed property acts under color of state law). Robison’s principal state action argument is that Seven Fields, owned and operated by Reilly, is a “company town” which performs all of the public functions of a government and therefore that Reilly (just as Canterbury Village which is not before" }, { "docid": "17013046", "title": "", "text": "S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). The district court found that Ms. Nail failed to prove that the defendants in her case were acting under the color of state law. We agree and therefore affirm the dismissal of her case. A private party may be so closely connected to the state that its activities may be attributed to the state. However, extensive regulation by the state is not enough to establish state action. The complaining party must show “a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1981) (quoting Jackson v. Metropolitan Edison, 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). Normally, a state can be held responsible for a private decision only when it has “exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed that of the state.” Blum, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (citing Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 166, 98 S.Ct. 1729, 1738, 56 L.Ed.2d 185 (1978). The Supreme Court addressed this issue in Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), whose facts closely resemble this case. The Court decided that although a private school was extensively regulated by the state, received most of its funding from state sources, and served a “public function,” the actions of the school officials in personnel decisions could not be considered state action. The court stated: [T]he decisions to discharge the petitioners were not compelled or even influenced by any state regulation. Indeed, in contrast to the extensive regulation of the school generally, the various regulators showed relatively little interest in the school’s personnel matters. The most intrusive personnel regulation promulgated by the various government agencies was the requirement that the Committee on Criminal Justice had the power to approve persons hired" }, { "docid": "22250290", "title": "", "text": "Tribe, American Constitutional Law ch. 18 (2d ed.) (forthcoming), where the Supreme Court has declared the formulation of “an infallible test” an “ ‘impossible task,’ ” Reitman v. Mulkey, 387 U.S. 369, 378, 87 S.Ct. 1627, 1632, 18 L.Ed.2d 830 (1967) (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961)), the majority relies primarily upon Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), and concludes that Hamilton’s actions were not caused by a rule of conduct imposed by the State. In Yaretsky, the Court noted the absence of a challenge to a particular state regulation, 457 U.S. at 1003, 102 S.Ct. at 2785, but said that “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” 457 U.S. at 1004, 102 S.Ct. at 2786. In a companion case, Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the Court found no state action where a private school’s decisions to discharge certain employees “were not compelled or even influenced by any state regulation.” 457 U.S. at 841, 102 S.Ct. at 2771. Here, the State did exercise coercive power and did so overtly. Had the pre-Henderson Act regulations been in effect at the time of appellants’ protest, that protest might or might not have amounted to the “extremely serious misconduct” necessary to authorize suspension. In contrast, the regulations adopted in direct response to the Henderson Act and concomitant state pressure permit the severe penalty of suspension for any misconduct. At the very least, I believe the students have shown that a factual dispute exists as to whether Hamilton’s actions were caused by a rule of conduct imposed by the State, see Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729, 1732-33, 56" }, { "docid": "2147372", "title": "", "text": "S.Ct. at 453. See also Rendell-Baker v. Kohn, 457 U.S. at 838-40, 102 S.Ct. at 2770-2771. Newsom v. Vanderbilt University, 653 F.2d 1100, 1113-16 (6th Cir.1981); cf. Lugar v. Edmondson Oil Co., Inc., 457 U.S. at 937, 102 S.Ct. at 2754. Applying that test, the court found that the plaintiffs in Blum had failed to establish “state action” in the nursing homes’ decisions to transfer or discharge patients because “[t]hose decisions ultimately turn on medical judgments made by private parties according to professional standards that are not established by the State.” Blum, 457 U.S. at 1008, 102 S.Ct. at 2788. The Court pointed out that mere approval or acquiescence by the state in the decision of a private party does not constitute state action. Id. at 1004-05, 102 S.Ct. at 2785-2786. See also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164-65, 98 S.Ct. 1729, 1737-1738, 56 L.Ed.2d 185 (1978); Jackson v. Metro Edison Co., 419 U.S. at 357, 95 S.Ct. at 456. Instead, the Court noted that a “State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum, 457 U.S. at 1004, 102 S.Ct. at 2786. Factually, Blum differs from the present case because the plaintiffs there sued the State of New York in an attempt to hold it responsible for the actions of private nursing homes. Here, Dr. Crowder is suing a private entity claiming that its actions are “state action”, even though the state was not directly involved in the challenged activities. This factual difference, however, does not undercut our applying the legal reasoning of Blum to the issue posed here. See Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (legal reasoning of Blum applied when deciding whether private school acted under color of state law when it discharged certain school employees). Dr. Crowder begins by arguing that state action is present because the hospital derives a considerable percentage of" }, { "docid": "23567631", "title": "", "text": "traditionally exclusively reserved to the state, such as holding elections, Flagg Bros., 436 U.S. at 149, 98 S.Ct. at 1729, or eminent domain, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974). With regard to this ease, providing mental health services has not been a power which has traditionally been exclusively reserved to the state. Plaintiff cannot establish that Portage Path was a state actor under the state compulsion test. The state compulsion test requires that a state exercise such coercive power or provide such significant encouragement, either overt or covert, that in law the choice of the private actor is deemed to be that of the state. See Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982); Bier v. Fleming, 717 F.2d 308, 311 (6th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1283, 79 L.Ed.2d 686 (1984). More than mere approval or acquiescence in the initiatives of the private party is necessary to hold the state responsible for those initiatives. Blum, 457 U.S. at 1004, 102 S.Ct. at 2785. In this case, although the state provided a significant portion of the funding of Portage Path, the state did not choose the members of the Board of Trustees, nor did it choose the executive director or make personnel policies or decisions for Portage Path. Thus, nothing in the record suggests that the state exercised such coercive power or provided such encouragement as to make Portage Path’s personnel decision state action. Nor can plaintiff establish that defendant was a state actor under the symbiotic relationship test. Under the symbiotic relationship or nexus test, the action of a private party constitutes state action when there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself. See Jackson, 419 U.S. at 351, 95 S.Ct. at 453; Burton, 365 U.S. at 724-25, 81 S.Ct. at 861-62. Merely because a business is subject to state regulation" }, { "docid": "9995446", "title": "", "text": "citizen’s arrest, the repossession of chattels, or the ejection of trespassers is. The statutes authorizing or constraining these private activities may or may not be constitutional ... the activities themselves remain private ____ Spencer, 864 F.2d at 1381. C. State Coercion or Encouragement: The final means by which a private party can be held to have functioned as a state actor occurs when the state has “exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the state.” Blum, 457 U.S. at 1004, 102 S.Ct. at 2785; Flagg Bros. 436 U.S. at 166, 98 S.Ct. at 1738; see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1971). Lewis apparently asserts that the state, through the voluntary commitment statutes, provided such significant encouragement to defendants that their actions were deemed to be actions of the state. The court, however, again refuses to conclude that the mere existence of the voluntary commitment statutes results in the transformation of defendants into state actors. With respect to such an argument, the court in Harvey noted, [T]he Georgia statutes neither compel nor encourage involuntary commitment, precluding Charter’s becoming a state actor by state compulsion____ Mrs. Harvey cannot seriously allege that the “relevant provisions of the mental health code were enacted because the state wants to encourage commitments, any more than the state repossession laws are passed because the state wants to encourage creditors to repossess their debtors’ goods.” See Harvey, 949 F.2d at 1130-31 (quoting Spencer, 864 F.2d at 1379). Similarly in Goss, the Fifth Circuit concluded that the powers granted to doctors under the Texas Medical Practices Act to review the competence of other physicians did not result in state action by the defendants as a result of their performance of such a function. See Goss, 789 F.2d at 356. Merely because a state provides a scheme by which private parties can effectuate a process does not mean that the private parties become state actors by implementing such a" }, { "docid": "17003195", "title": "", "text": "a state actor under the Shelley analysis. A third situation in which we would find state action arises when the state has commanded or encouraged the private discriminatory action. Neither general government involvement nor detailed regulation is sufficient to find state action. Rather, the state must “affirmatively] support” the private conduct challenged. Musso v. Suriano, 586 F.2d 59, 62 (7th Cir.1978), cert. denied, 440 U.S. 971, 99 S.Ct. 1534, 59 L.Ed.2d 788 (1979); see also Rendell-Baker v. Kohn, 457 U.S. 830, 840, 102 S.Ct. 2764, 2770, 73 L.Ed.2d 418 (1982) (citing significant state encouragement as prerequisite to finding state action); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357, 95 S.Ct. 449, 456, 42 L.Ed.2d 477 (1974) (holding that initiative for action must come from state; however, no evidence in record that state encouraged practice at issue). The school district has two policies which allow community organizations to use its facilities to advertise and to hold their events. The BSA is one of many organizations which take advantage of this policy. As a “youth recreational activity,” it is allowed to use the facilities at a lower rate than some other community activities; however, it is treated no differently than nonreligious youth organizations such as the campfire groups and the Indian guides. The BSA’s treatment by the school district is not contingent on the BSA’s policy of requiring that its members believe in God. It cannot be said that the school district “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982). Finally, we would find state action in private discriminatory conduct when the private actor carries on a traditional state function. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157-64, 98 S.Ct. 1729, 1733-38, 56 L.Ed.2d 185 (discussing traditional state functions); see also Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (holding preprimary elections to be governmental function); Marsh v. Alabama, 326 U.S. 501," }, { "docid": "23567630", "title": "", "text": "is whether the party’s actions may be “fairly attributable to the state.” See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). The Supreme Court has set forth three tests to determine whether the challenged conduct may be fairly attributable to the state in order to hold the defendants liable under section 1983. These tests are: (1) the public function test, West v. Atkins, 487 U.S. 42, 49-50, 108 S.Ct. 2250, 2255-2256, 101 L.Ed.2d 40 (1988); Flagg Bros. v. Brooks, 436 U.S. 149, 157, 98 S.Ct. 1729, 1734, 56 L.Ed.2d 185 (1978); (2) the state compulsion test, Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S.Ct. 1598, 1615, 26 L.Ed.2d 142 (1970); and (3) the symbiotic relationship or nexus test, Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-26, 81 S.Ct. 856, 859-62, 6 L.Ed.2d 45 (1961). Plaintiff cannot establish that defendant is a state actor under the public function test. The public function test requires that the private entity exercise powers which are traditionally exclusively reserved to the state, such as holding elections, Flagg Bros., 436 U.S. at 149, 98 S.Ct. at 1729, or eminent domain, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974). With regard to this ease, providing mental health services has not been a power which has traditionally been exclusively reserved to the state. Plaintiff cannot establish that Portage Path was a state actor under the state compulsion test. The state compulsion test requires that a state exercise such coercive power or provide such significant encouragement, either overt or covert, that in law the choice of the private actor is deemed to be that of the state. See Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982); Bier v. Fleming, 717 F.2d 308, 311 (6th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1283, 79 L.Ed.2d 686 (1984). More than mere approval or acquiescence in the initiatives of the private party is necessary to hold the state responsible for" }, { "docid": "17003196", "title": "", "text": "activity,” it is allowed to use the facilities at a lower rate than some other community activities; however, it is treated no differently than nonreligious youth organizations such as the campfire groups and the Indian guides. The BSA’s treatment by the school district is not contingent on the BSA’s policy of requiring that its members believe in God. It cannot be said that the school district “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982). Finally, we would find state action in private discriminatory conduct when the private actor carries on a traditional state function. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157-64, 98 S.Ct. 1729, 1733-38, 56 L.Ed.2d 185 (discussing traditional state functions); see also Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (holding preprimary elections to be governmental function); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (holding state action exists when company town deprives residents of constitutional rights). No allegations have been made on these grounds; indeed, no reasonable argument can be made that the BSA serves a traditional governmental function. Therefore, the BSA’s conduct is not state action and cannot be reached through the Equal Protection clause. Conclusion For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED. . The Riley School Parent Teacher Organization moved to dismiss the complaint against it; the district court granted this motion to dismiss simultaneously with denying the plaintiffs’ prayer for relief against the remaining defendants. . Use of School Facilities Policy (attached as exhibit A to Affidavit of Lloyd Descarpentrie) at 1. . The policy defines \"community organizations” as \"nonprofit organizations composed primarily of people who reside in District #21 and who have members and activities open to the community.” Use of Facilities Policy at 1. . \"School activities” are defined as \"all activities planned and/or sponsored by the Board of Education and/or" }, { "docid": "13472550", "title": "", "text": "like the arrest of criminal suspects, is so central and traditional a function of government that the state cannot limit its responsibility for performing the function. Any private individual who is empowered to commit a person to an institution against the person’s will is government, just as the \"company town” in Marsh was a part of the government of Alabama, although a part that had been handed over to a private entity to administer. Spencer is thus appealing — with support in the language of cases like Blum and in the outcome of Marsh — to the idea that governmental functions that have traditionally been the exclusive prerogative of government, usually because they involved a high degree of coercion, can be delegated but not abandoned. The treatment of the mentally disabled, however, as of the sick and infirm generally, is not such a function. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2772, 73 L.Ed.2d 418 (1982); Musso v. Suriano, 586 F.2d 59, 63 (7th Cir.1978); Hoyt v. St. Mary’s Rehabilitation Center, 711 F.2d 864, 866 (8th Cir.1983); Taylor v. First Wyoming Bank, 707 F.2d 388 (9th Cir. 1983), and cases cited there. The issue here, it is true, is involuntary commitment rather than treatment. But the analogy that Spencer seeks to draw to arrest is inapt, since a citizen’s arrest is not subject to challenge under section 1983. Lee v. Town of Estes Park, 820 F.2d 1112 (10th Cir.1987); Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir.1987); Bryant v. Donnell, 239 F.Supp. 681, 687 (W.D.Tenn.1965); cf. Griffin v. Maryland, 378 U.S. 130, 135, 84 S.Ct. 1770, 1772, 12 L.Ed.2d 754 (1964) (where this proposition seems to have been assumed). Nor is the exercise of self-defense, or the defense of property by evicting trespassers or repossessing chattels, state action, even though self-defense often and the defense of property sometimes involve a degree of force characteristic of police operations. There have been citizen arrests for as long as there have been public police — indeed much longer. In ancient Greece and Rome, and in" }, { "docid": "23119080", "title": "", "text": "commitment at Charter was made possible by Georgia statute. Her complaint ultimately fails, however, because Charter is no state actor. Only in rare circumstances can a private party be viewed as a “state actor” for section 1983 purposes. The Eleventh Circuit recognizes three tests for establishing state action by what is otherwise a private person or entity: the public function test, the state compulsion test, and the nexus/joint action test. NBC v. Communication Workers of America, AFL-CIO, 860 F.2d 1022, 1026 (11th Cir.1988). An analysis under each test reveals no state action in this case. We agree with Watkins v. Roche, 529 F.Supp. 327, 331 (S.D.Ga.1981), that the Georgia statutes neither compel nor encourage involuntary commitment, precluding Charter’s becoming a state actor by state compulsion. Like the plaintiff in the similar case of Spencer v. Lee, Mrs. Harvey cannot seriously allege that “the relevant provisions of the Mental Health Code were enacted because the state wants to encourage commitments, any more than state repossession laws are passed because states want to encourage creditors to repossess their debtors’ goods.” Spencer v. Lee, 864 F.2d 1376, 1379 (7th Cir.1989) (en banc) (citation omitted), cert. denied, — U.S. -, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). Nor does the statute create a sufficiently close nexus between the state and Charter to mandate Charter’s classification as a state actor. Watkins, 529 F.Supp. at 329. The nexus/joint action test involves situations where the government has “so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise.” NBC, 860 F.2d at 1026 (citation omitted). Both the Supreme Court and our predecessor circuit have concluded that such a nexus is lacking in circumstances much more compelling than the circumstances of this case. See Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (private nursing home not state actor despite extensive regulation and 90% fees from state); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (private school that treats students with drug/alcohol problems not state actor despite operating" }, { "docid": "13472549", "title": "", "text": "powers to private actors. We have to situate the present case in this grid. It is not a case of governmental encouragement or direction of private persons; and “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, supra, 457 U.S. at 1004, 102 S.Ct. at 2786. See also Tunca v. Lutheran General Hospital, 844 F.2d 411, 414 (7th Cir.1988); Ezpeleta v. Sisters of Mercy Health Corp., 800 F.2d 119, 122 (7th Cir.1986). Spencer does not suggest that the relevant provisions of the Mental Health Code were enacted because the state wants to encourage commitments, any more than state repossession laws are passed because states want to encourage creditors to repossess their debtors’ goods. See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). His argument is that the commitment of the mentally ill, like the arrest of criminal suspects, is so central and traditional a function of government that the state cannot limit its responsibility for performing the function. Any private individual who is empowered to commit a person to an institution against the person’s will is government, just as the \"company town” in Marsh was a part of the government of Alabama, although a part that had been handed over to a private entity to administer. Spencer is thus appealing — with support in the language of cases like Blum and in the outcome of Marsh — to the idea that governmental functions that have traditionally been the exclusive prerogative of government, usually because they involved a high degree of coercion, can be delegated but not abandoned. The treatment of the mentally disabled, however, as of the sick and infirm generally, is not such a function. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2772, 73 L.Ed.2d 418 (1982); Musso v. Suriano, 586 F.2d 59, 63 (7th Cir.1978); Hoyt v. St. Mary’s Rehabilitation" } ]

[ { "docid": "2434862", "title": "", "text": "witnessed by the arresting officer. Therefore, we hold that the custodial arrest of Ramos was lawful under § 13-3883(A)(2). Nevertheless, Ramos contends that the Arizona Legislature’s enactment of § 13-3883(B), in 1990, precludes the custodial arrest of an individual suspected of committing a criminal traffic offense in the presence of a peace officer. In support of his argument, Ramos notes dictum found in a footnote in a recent Arizona Court of Appeals case named Baker v. Clover, 177 Ariz. 37, 864 P.2d 1069 (App.1993), which interprets § 13-3883(B) as precluding such arrests. Ramos asserts that Baker’s interpretation of the subsection is binding and forbids any contrary conclusion as to what interpretation Arizona’s highest court would give the subsection. We disagree. As the meaning of subsection B had no bearing on the reasoning or outcome of the Baker case, the statements made in the footnote were dictum. Furthermore, the Arizona Court of Appeals neither explained or supported its interpretation of subsection B, leading us to conclude that the footnote was not intended to definitively resolve the statute’s meaning and cannot be called “considered dictum.” Manalis Finance Co. v. U.S., 611 F.2d 1270, 1273 (9th Cir.1980). If the Baker court had intended to definitively resolve the statute’s meaning in writing the footnote, this court would be more obligated to follow the state intermediate court’s interpretation of the statute unless we found ourselves “convinced by other persuasive data that the highest court of the state would decide otherwise.” West v. American Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). Since we are convinced the Arizona Supreme Court would interpret subsection B differently than the Baker court did, we reach our conclusion as to the subsection’s meaning despite the interpretation given it by the Baker court. In 1983, the Arizona Legislature decriminalized many of its traffic offenses. See State v. Poli 161 Ariz. 151, 152, 776 P.2d 1077 (App.1989); see also 1983 Ariz.Sess. Laws, Ch. 271, §§ 1-53, at 984-1017. Now these offenses, including most moving and speeding offenses, are civil violations. See A.R.S. § 28-1071(A)." } ]

[ { "docid": "15978735", "title": "", "text": "58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). The simplest way to discern state law is to follow a state statute or a decision by the highest court of the state. When only a state intermediate appellate court has ruled, however, the United States Supreme Court has held: [wjhere an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise. West v. American Tel. and Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940); see also Hicks ex rel Feiock v. Feiock, 485 U.S. 624, 630 n. 3, 108 S.Ct. 1423, 1428 n.3, 99 L.Ed.2d 721 (1988); King v. Order of United Commercial Travelers, 333 U.S. 153, 158, 68 S.Ct. 488, 491, 92 L.Ed. 608 (1948). The general rule is that a federal court must follow the decision of an intermediate state appellate court unless there is “persuasive data” that the highest court would decide differently. Lynch v. Universal Life Church, 775 F.2d 576, 580 (4th Cir.1985) (“Ordinarily, a federal court should follow the decisions of the intermediate state court of appeals.”). The district court found that its reading of § 5-102(b) was “more corroborating than that of the Court of Special Appeals.” We know of no rule that allows the district judge to make a “corroborating” finding when there is an opinion of the second highest court in the state directly on point. The judge presented no persuasive data that the highest court in Maryland would decide the question presented in Allied Funding differently, nor does he explain what standard he may have used to find his reading of the statute to be “more corroborating.” We apply Allied Funding and hold that because the payments in 1983 and 1984 were not within the last three years of the running of the twelve year statute of limitations, they did not have the effect" }, { "docid": "18735320", "title": "", "text": "not a good predictor of what the state's highest court would do in a similar case.\" Williams, McCarthy, Kinley, Rudy & Picha v. Northwestern Nat'l Ins. Group, 750 F.2d 619, 624 (7th Cir.1984). See generally West v. A.T. & T. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183 (1940); White v. United States, 680 F.2d 1156 (7th Cir. 1982). Nor can we follow an intermediate court decision “that is inconsistent with a state supreme court ruling.” Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 272 (7th Cir.1983). We have studied the cases cited by Harvester. We believe that these holdings are fact-specific applications of Tweedy which do not disturb the basic principles of Tweedy and Dunham and which are distinguishable from the facts before us. In short, they are not helpful except inasmuch as they confirm the continued vitality of Tweedy in Illinois. But see Indianapolis Airport Auth. v. American Airlines, 733 F.2d 1262, 1272 (7th Cir.1984) (federal court may follow state intermediate appellate court decision declining to follow old state supreme court decision when federal court is convinced that intermediate court has correctly determined that state supreme court would overrule its decision if it had the opportunity to do so)." }, { "docid": "11833207", "title": "", "text": "burglary. The Court stated that, “while the statutory language is broad, the Florida Supreme Court has considerably narrowed its application in the context of attempted burglary,” and “Florida’s lower courts appear to have consistently applied this heightened standard.” Id. Contrary to Taylor’s argument, the Court did not hold in James that we may not rely on a state’s intermediate appellate courts in determining how a state actually applies an attempt statute. In fact, in James, the Court cited two Florida intermediate appellate court decisions, Richardson v. State, 922 So.2d 331, 334 (Fla.Ct.App.2006), and Davis v. State, 741 So.2d 1213, 1214 (Fla.Ct.App.1999), for the proposition that mere preparation is not enough to constitute attempt under Florida law. James, 127 S.Ct. at 1594. Taylor has cited no authority, and we are aware of none, that requires a district court to disregard an opinion rendered by an intermediate appellate court that has interpreted state law. Neither the Supreme Court nor any Circuit Court of Appeals has determined whether a district court is precluded from applying the decisions of intermediate state appellate courts in deciding whether a state criminal statute is coextensive with federal law. However, the Supreme Court has held, in a case in which jurisdiction rested on diversity of citizenship, that Where an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise. West v. AT & T, 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940). We follow this principle here. We are persuaded that a state intermediate appellate court’s holding takes a statute’s application from “legal imagination” to “realistic probability.” The district court did not err in relying on Arizona intermediate appellate court opinions. Accordingly, we must consider the question whether, under Arizona caselaw, Taylor’s attempted armed robbery conviction was a crime of violence because it is an offense that “has as an element the use," }, { "docid": "4887833", "title": "", "text": "Indem. Co., 49 F.3d 1128, 1131 (6th Cir.1995); Mahne v. Ford Motor Co., 900 F.2d 83, 86 (6th Cir.); cert. denied 498 U.S. 941, 111 S.Ct. 349, 112 L.Ed.2d 313 (1990). Citing the U.S. Supreme Court in the case of West v. AT & T Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940), the Court further stated, “In predicting the decision of the highest state court, the federal court may not disregard the decision of an intermediate appellate state court unless it is convinced by other persuasive data-e.g., decisions from other jurisdictions, treatises, law review, commentaries, or the majority rule — that the highest state court would decide the matter otherwise.” Arnold, supra p. 2. (Plaintiffs Response, Court File No. 6, p. 7, ¶ 2). Plaintiff points out that West requires the Court to look to the complete body of state law in reaching a decision on what the highest court of the state would decide. In support of her position, plaintiff points to the following language from West (Plaintiffs Response, Court File No. 6, pp. 8-9): A state is not without law save as its highest court has declared it. There are many rules of decision commonly accepted and acted upon by the bar and inferior courts which are nevertheless laws of the state although the highest court of the state has never passed upon them. In those circumstances a federal court is not free to reject the state rule merely because it has not received the sanction of the highest state court, even though it thinks the rule is unsound in principal or that another is preferable. State law is to be applied in the federal as well as the state courts and it is the duty of the former in every case to ascertain from all the available data which the state law is and apply it rather than to prescribe a different rule, however superior it may appear from the viewpoint of “general law” and however much the state rule may have departed from prior decisions of the federal courts. Where" }, { "docid": "2450402", "title": "", "text": "61 S.Ct. 179, 85 L.Ed. 139 (1940); accord, Hicks v. Feiock, 485 U.S. 624, 630 n. 3, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); see also Stoner v. New York Life Ins. Co., 311 U.S. 464, 467, 61 S.Ct. 336, 85 L.Ed. 284 (1940) (“[Federal courts, under the doctrine of Erie ... must follow the decisions of intermediate state courts in the absence of convincing evidence that the highest court of the state would decide differently.”). Thus, a federal court must “present” persuasive data when it chooses to ignore a decision of a state intermediate appellate court that is directly on point. United States v. Little, 52 F.3d 495, 498 (4th Cir.1995). What a federal court, sitting in diversity, cannot do is simply substitute its judgment for that of the state court. Id. B. The experienced district judge undoubtedly understood the above principles. However, we believe he miscalculated the persuasiveness of the data upon which he relied in concluding that the Maryland Court of Appeals would decline to follow Bernhardt. This may be because we have never articulated what constitutes “persuasive data,” permitting a federal court to disregard an intermediate appellate court’s holding on a question of state law. We take this opportunity to set forth some guidelines. Generally, only if the decision of a state’s intermediate court cannot be reconciled with state statutes, or decisions of the state’s highest court, or both, may a federal court sitting in diversity refuse to follow it. When an intermediate state court decision is at odds with an existing statutory scheme or one amended after issuance of the intermediate court’s decision, a federal court may justifiably surmise that the statute presents persuasive data that the state’s highest court would not follow the intermediate court’s decision. See, e.g., J & R Ice Cream Corp. v. California Smoothie Licensing Corp., 31 F.3d 1259, 1271-73(3d Cir.1994); Ground Air Transfer, Inc. v. Westates Airlines, 899 F.2d 1269, 1275 (1st Cir.1990) (alternative holding). Similarly, the holdings of a state’s highest court that undermine the rationale of an intermediate appellate court decision may constitute such persuasive data, see Dimidowich" }, { "docid": "21043893", "title": "", "text": "based on an analysis of the contractual language and the principles of contract interpretation,” and we review under a clearly erroneous standard “when the [district court’s] interpretation focuses on extrinsic evidence of related facts.... ” Lawyers Title Ins. Corp. v. Honolulu Fed. Sav. and Loan Ass’n, 900 F.2d 159, 162 (9th Cir.1990). In this case, the district court concluded that ICP breached the notice clause or requirement in the reinsurance contract, and that Associated was prejudiced. Since the district court’s findings were based upon “an analysis of the contractual language” and its conclusions of California law, they are subject to de novo review. Lansing Sound, 801 F.2d at 1564. II. Applicable Law In this diversity case governed by the substantive law of insurance of California, we are required to “ascertain from all the available data what the state law is and apply it_” West v. American Telephone and Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). In the absence of a decision by the state’s highest-court, “this court looks to decisions by intermediate appellate state courts for guidance.” State Farm, 874 F.2d at 621. Indeed, state intermediate appellate court decisions are “ ‘not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.’ ” Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986) (quoting West, 311 U.S. at 237, 61 S.Ct. at 183). It is understood that “well-reasoned decisions from other jurisdictions” may also be considered. Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir.1980). Careful research discloses no California Supreme Court case that has addressed the specific question of a notice provision in a reinsurance contract. Hence, we are, as was the district court, required to use our “own best judgment in predicting” how the Supreme Court of California would inter pret this reinsurance contract. Takahaski, 625 F.2d at 316. III. Notice Requirement A reinsurance contract “is one by which an insurer procures a third person to insure him against loss or liability" }, { "docid": "21914107", "title": "", "text": "issue. The government contends that Indiana follows the traditional view, citing a number of Indiana Court of Appeals cases applying the donor-ownership concept. See, e.g., Irwin Union Bank & Trust Co. v. Long, 160 Ind.App. 509, 312 N.E.2d 908 (1974); Osborn v. Murphy, 135 Ind.App. 291, 193 N.E.2d 669 (1963); Osborn v. Osborn, 124 Ind.App. 295, 116 N.E.2d 653 (1954) (en banc); Johnson v. Snyder, 82 Ind.App. 215, 142 N.E. 877 (1924). These cases neither examine the impact of choice-of-law considerations on the traditional rule nor bind the Indiana Supreme Court. We seriously doubt whether Indiana’s highest court would feel compelled to follow them, and we therefore decline to do so ourselves. As Justice Stevens observed while a member of this Court, intermediate appellate court decisions “may be disregarded if we are ‘convinced by other persuasive data that the highest court of the state would decide otherwise.’ ” Gates Rubber Co. v. USM Corp., 508 F.2d 603, 607 (7th Cir. 1975), quoting West v. American Telephone and Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). The government’s reliance on our decision in First National Bank of Chicago v. Ettlinger, 465 F.2d 343 (7th Cir. 1972), is also misplaced. Unlike this case, in Ettlinger the parties agreed that the traditional donor’s-domicile rule was normally followed by the highest court of Illinois, the state in which the district court was sitting. In light of the Illinois Supreme Court’s position in In re Breault’s Estate, 29 Ill.2d 165, 174, 193 N.E.2d 824, 829 (1963), our dicta in Ettlinger simply suggested that we adhered to Illinois’ general rule, not that we approved it. 465 F.2d 346 n.2. Because no Indiana Supreme Court case binds us here, we need not follow the traditional doctrine. Indeed, contrary to the government’s position, Ettlinger supports our holding in this case. Although we were influenced in Ett-linger by such practical considerations as the appointive property’s New York location and the donee’s long-time New York residency, of primary significance was the donee’s testamentary specification that New York law should govern his will. 465 F.2d" }, { "docid": "2450404", "title": "", "text": "v. Bell & Howell, 803 F.2d 1473, 1482-83 (9th Cir.1986); this is so even if a state supreme court holding antedates the inferior court’s opinion. See Humphrey v. C.G. Jung Educ. Ctr., 624 F.2d 637, 643 (5th Cir.1980) (alternative holding). However, a federal court must closely scrutinize the assertedly conflicting statutory schemes or supreme court decisions to satisfy itself that they truly do undermine an intermediate appellate court decision directly on point. See, e.g., Gates Rubber Co. v. USM Corp., 508 F.2d 603, 606-15 (7th Cir.1975). A federal court can depart from an intermediate court’s fully reasoned holding as to state law only if “convinced” that the state’s highest court would not follow that holding. West, 311 U.S. at 237, 61 S.Ct. 179; cf. United States v. Ramos, 39 F.3d 219, 221-22 (9th Cir.1994) (an intermediate court’s totally unexplained holding may merit less deference). Accordingly, a federal court cannot refuse to follow an intermediate appellate court’s decision simply because it believes the intermediate court’s decision was wrong, bad policy, or contrary to the majority rule in other jurisdictions. West, 311 U.S. at 237 (federal courts have a duty to apply state law “rather than to prescribe a different rule, however superior [the different rule] may appear from the viewpoint of ‘general law and however much the state rule may have departed from prior decision of the federal courts”); Malone v. Bankhead Enters., 125 F.3d 535, 540 (7th Cir.1997) (“The mere fact that more courts have interpreted other states’ savings statutes differently does not persuade us that the Illinois appellate courts improperly interpreted Illinois’ statute.”). With these precepts in mind, we examine the data that the district court relied on in refusing to follow Bernhardt. C. The district court based its ruling on two factors. First, the court noted that the Maryland Court of Appeals had granted certio-rari in Bernhardt (which was withdrawn upon settlement), “indicating] that at least a number of the judges of that Court though[t] the matter ought to be taken up.” Second, the district court determined that the Maryland Court of Appeals’ decision in Sullins v. Allstate" }, { "docid": "3336078", "title": "", "text": "61 S.Ct. at 178. At the same term the Supreme Court further defined the rule to be applied by federal courts as follows: A state is not without law save as its highest court has declared it. There are many rules of decision commonly accepted and acted upon by the bar and inferior courts which are nevertheless laws of the state although the highest court of the state has never passed upon them. In those circumstances a federal court is not free to reject the state rule merely because it has not received the sanction of the highest state court, even though it thinks the rule is unsound in principle or that another is preferable. State law is to be applied in the federal as well as the state courts and it is the duty of the former in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a different rule, however superior it may appear from the viewpoint of “general law” and however much the state rule may have departed from prior decisions of the federal courts. Where an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise. West v. American Telephone & Telegraph Co., 311 U.S. 223, 236-37, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940) (citation omitted). See also, Six Companies v. Highway District, 311 U.S. 180, 188, 61 S.Ct. 186, 188, 85 L.Ed. 114 (1940). Thus, before concluding that Stricklan v. Koella states the rule of law of Tennessee we must determine whether there is “more convincing evidence of what the state law is” with respect to legal malpractice in the conduct of litigation. Tennessee clearly recognizes a cause of action for legal malpractice. In fact, the concluding paragraph of the opinion in Stricklan v. Koella states, “We do not hold" }, { "docid": "23351287", "title": "", "text": "shopping and promoting uniformity within any given jurisdiction on matters of local substantive law.” Lee v. Flintkote Co., 593 F.2d 1275, 1278-79 n. 14 (D.C.Cir.1979). C. A federal court under Erie is bound to follow state law as announced by the highest state court. “If the highest court has not spoken to the issue, we can garner assistance from the decisions of the state’s intermediate appellate courts in predicting how the state’s highest court would rule.” Mosley v. Wilson, 102 F.3d 85, 92 (3d Cir.1996). Although state intermediate appellate decisions are not automatically controlling, see Paoletto v. Beech Aircraft Corp., 464 F.2d 976 (3d Cir.1972), the Supreme Court in Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967), summarized current practice as follows: “even in diversity cases this Court has further held that while the decrees of lower state courts should be attributed some weight the decision -is not controlling where the highest court of the State has not spoken on the point.” Id. at 465, 87 S.Ct. 1776 (internal quotation marks and citations omitted). In West v. A.T. & T. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940), the Supreme Court further held that “an intermediate appellate state court ... is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” The Superior Court of the Virgin Islands (formerly the Territorial Court) is not the highest court of the Territory. It is not even an intermediate appellate court, but rather a trial court. Therefore, although we believe that the District Court could have looked to the decisions of the Superior Court as “a datum for ascertaining state law,” we cannot conclude that it erred in holding that it was not bound by the decisions of the Superior Court. Be cause the Virgin Islands Supreme Court has made no pronouncement on the arbitration issue presented in this case, we will turn our" }, { "docid": "23601227", "title": "", "text": "at 946. By including that discussion in its opinion, however, we are required to determine, under Erie, the weight to be afforded a statement of what purports to be the law of New Jersey made by the intermediate appellate court of that state when that statement is no more than dictum. In Paoletto v. Beech Aircraft Corporation, 464 F.2d 976 (3d Cir.1972), this Court in a diversity action followed the principle announced in Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967) and prescribed the effect of inferior court determinations in ascertaining the state law in question: We are not precluded from giving ‘proper regard’ to the holdings of the lower courts of the forum state in fashioning a conflict-of-laws rule, although, unlike the holdings of the state’s highest court, they are not necessarily dispositive of the question. See Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1966). Paoletto thus counsels that state intermediate appellate decisions are not automatically controlling. The Supreme Court in Bosch summarized current practice in diversity cases as follows: A.T.&T. Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940), this Court further held that ‘an intermediate appellate state court . . . is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.’ At 237, 61 S.Ct. [179] at 183. (Emphasis supplied.) Thus, under some conditions, federal authority may not be bound even by an intermediate state appellate court ruling. [E]ven in diversity cases this Court has further held that while the decrees of Tower state courts’ should be ‘attributed some weight . . . the decision [is] not controlling . . . ’ where the highest court of the State has not spoken on the point. King v. Order of Travelers, 333 U.S. 153, 160-161, 68 S.Ct. [488], at 492, 92 L.Ed. 608 (1948). And in West v. This is but an" }, { "docid": "2450407", "title": "", "text": "appellate court in that case. Cf. Haugen v. Total Petroleum, Inc., 971 F.2d 124, 126 n.2 (8th Cir.1992) (Minnesota Supreme Court’s denial of review of Minnesota Court of Appeals decision does not “give the court of appeals decision any more or less precedential weight”); Giguere v. United States Steel Corp., 262 F.2d 189, 192 (7th Cir.1959) (Illinois Supreme Court’s grant of appeal to Illinois Appellate Court ease does not diminish precedential weight of the intermediate court’s holding). Thus, the district court’s reliance on the certiorari grant was misplaced. Sullins, upon which the district court principally relied, however, presents a more complicated question. In Sullins, the Maryland Court of Appeals held, a year after Bernhardt, that a pollution exclusion clause did not bar coverage for injuries resulting from exposure to lead paint chips. 340 Md. 503, 667 A.2d 617. The district court concluded that Sullins “essentially held that the standard pollution exclusion applies to what, in common sense, it ought to apply, viz., to pollution of the physical environment that is the contamination of the air and water that surround us all, not contamination of indoor living space.” To the extent the district court relied on “common sense” or what “ought to” be the law, it erred. These do not constitute persuasive data permitting a federal court to ignore the holding of an intermediate state court. See West, 311 U.S. at 237, 61 S.Ct. 179; Malone, 125 F.3d at 540. For this same reason, Neil’s citation to assertedly well reasoned cases construing the law of other states to find pollution exclusions inapplicable to carbon monoxide poisoning or other indoor contaminations, does not assist him. Such cases do exist. See, e.g., Western Alliance Ins. Co. v. Gill, 426 Mass. 115, 686 N.E.2d 997 (Mass.1997); Stoney Run Co. v. Prudential-LMI Ins. Co., 47 F.3d 34 (2d Cir.1995) (New York law); Regional Bank of Colorado v. St. Paul Fire & Marine Ins. Co., 35 F.3d 494 (10th Cir.1994) (Colorado law); Thompson v. Temple, 580 So.2d 1133 (La.App.1991). They may even state the “better view.” But see State Farm Fire & Casualty v. Deni Assoc.," }, { "docid": "2450401", "title": "", "text": "all its implications. A state’s highest court need not have previously decided a case with identical facts for state law to be clear. It is enough that a fair reading of a decision by a state’s highest court directs one to a particular conclusion. Only when this inquiry proves unenlightening, as we find it does in this case, should a federal court seek guidance from an intermediate state court. When seeking such guidance we defer to a decision of the state’s intermediate appellate court to a lesser degree than we do to a decision of the state’s highest court. Nevertheless, we do defer. Indeed, the Supreme Court has specifically directed: [w]here an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for as certaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise. West v. A T & T, 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940); accord, Hicks v. Feiock, 485 U.S. 624, 630 n. 3, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); see also Stoner v. New York Life Ins. Co., 311 U.S. 464, 467, 61 S.Ct. 336, 85 L.Ed. 284 (1940) (“[Federal courts, under the doctrine of Erie ... must follow the decisions of intermediate state courts in the absence of convincing evidence that the highest court of the state would decide differently.”). Thus, a federal court must “present” persuasive data when it chooses to ignore a decision of a state intermediate appellate court that is directly on point. United States v. Little, 52 F.3d 495, 498 (4th Cir.1995). What a federal court, sitting in diversity, cannot do is simply substitute its judgment for that of the state court. Id. B. The experienced district judge undoubtedly understood the above principles. However, we believe he miscalculated the persuasiveness of the data upon which he relied in concluding that the Maryland Court of Appeals would decline to follow Bernhardt. This may be because we" }, { "docid": "16094605", "title": "", "text": "interest based on Utah law and federal statutes. In the absence of a state supreme court ruling, a federal court must follow an intermediate state court decision unless other authority convinces the federal court that the state supreme court would decide otherwise. Delano v. Kitch, 663 F.2d 990, 996 (10th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2012, 72 L.Ed.2d 468 (1982) (citing West v. American Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940)); accord Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1574 (10th Cir.1984). The Supreme Court states: In [the absence of a state supreme court decision] a federal court is not free to reject the state rule merely because it has not received the sanction of the highest state court, even though it thinks the rule is unsound in principle or that another is preferable.... [I]t is the duty of the [federal court] in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a different rule, however superior it may appear from the viewpoint of “general law” and however much the state rule may depart from prior decisions of the federal courts. West, 311 U.S. at 236-37, 61 S.Ct. at 183. The district court’s decision to deny Staats’ request for prejudgment interest ignores the state appellate court decisions which have allowed other claimants to recover prejudgment interest in similar situations. The district court has failed to cite us to other authority which convinces it that the Colorado Supreme Court would decide otherwise than as the Colorado Court of Appeals in Isbill, LaFond or Hott. In Isbill, the Colorado Court of Appeals was asked to review the propriety of a district court’s award of prejudgment inter-. est in a property damage case. An engineering consulting firm brought an action to recover for water damage to technical draws. The court found the statutory language that prejudgment interest would be awarded only when “money or property has been wrongfully withheld” to be unclear, and resorted to legislative history to" }, { "docid": "2450405", "title": "", "text": "in other jurisdictions. West, 311 U.S. at 237 (federal courts have a duty to apply state law “rather than to prescribe a different rule, however superior [the different rule] may appear from the viewpoint of ‘general law and however much the state rule may have departed from prior decision of the federal courts”); Malone v. Bankhead Enters., 125 F.3d 535, 540 (7th Cir.1997) (“The mere fact that more courts have interpreted other states’ savings statutes differently does not persuade us that the Illinois appellate courts improperly interpreted Illinois’ statute.”). With these precepts in mind, we examine the data that the district court relied on in refusing to follow Bernhardt. C. The district court based its ruling on two factors. First, the court noted that the Maryland Court of Appeals had granted certio-rari in Bernhardt (which was withdrawn upon settlement), “indicating] that at least a number of the judges of that Court though[t] the matter ought to be taken up.” Second, the district court determined that the Maryland Court of Appeals’ decision in Sullins v. Allstate Ins. Co., 667 A.2d 617 (Md.1995), led to the inescapable conclusion that the high court “would reverse Bernhardt if that decision were to reach it for review.” As to the first factor, although a grant of certiorari surely does indicate that some of the judges on the high court wish to hear a case, it does not, in itself, constitute a decision on the merits. Indeed, more frequently than not, a grant of certiorari in Maryland does not even result in reversal by the high court. During the 1997 fiscal year the Maryland Court of Appeals reversed, dismissed, or remanded 36 of the civil cases it heard. Administrative Office of the Courts, Annual Report of the Maryland Judiciary 1996-1997 Table CA-7 (1997). By comparison, the court affirmed 40 cases. Id. Given these statistics and the principles set forth above governing federal courts in diversity cases, the Maryland Court of Appeals’ decision to grant certiorari in a case cannot constitute persuasive data that the high court would choose not to follow the decision of the intermediate" }, { "docid": "23629130", "title": "", "text": "882-84 (Mo.1978) (en banc)). Alternatively, the district court held that even if a negligence claim were permitted in this situation under Missouri law, it would be based upon the Uniform Commercial Code and the U.C.C. four year statute of limitations would bar plaintiffs’ negligence claim. R.W. Murray Co. v. Shatterproof Glass Corp., supra, 529 F.Supp. at 300. Initially we note that in reviewing the district court’s determination of Missouri law in the instant case, our task, as was that of the district court, “is not to formulate the legal mind of the state, but merely to ascertain and apply it.” Aguilar v. Flores, 549 F.2d 1161, 1163 (8th Cir.1977). Generally, we look to the decisions of the highest court of the state as the final authority on state law. West v. American Telephone and Telegraph Co., 311 U.S. 223, 236, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940); Fidelity Trust Co. v. Field, 311 U.S. 169, 177, 61 S.Ct. 176, 177, 85 L.Ed. 109 (1970). “When it has spoken, its pronouncement is to be accepted by federal courts as defining state law unless it has later given clear and persuasive indication that its pronouncement will be modified, limited or restricted.” West v. American Telephone and Telegraph Co., supra, 311 U.S. at 236, 61 S.Ct. at 183 (citation omitted). However, [a] state is not without law save as its highest court has declared it, * * * and it is the duty of [federal courts] in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a different rule, however superior it may appear from the viewpoint of “general law” and however much the state rule may have departed from prior decisions of the federal courts. Where an intermediate appellate state court rests its considered judgment upon the rule of law which is announced, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." }, { "docid": "18735319", "title": "", "text": "than one year old, the plaintiff was the car’s second owner. The car’s first owner had returned it to the dealership when a rod came loose. . Harvester has invited our attention to many decisions of the Appellate Court of Illinois which, it submits, demonstrate a consistent “refusal to extend Tweedy beyond its facts” and a refusal \"to apply its holding to cases much closer to Tweedy than the facts at bar____” Appellant’s Br. at 12-13 (footnote omitted). Our obligation is clear: \"[S]tate law as announced by the highest court of the State is to be followed.” Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967). The decisions of an intermediate appellate court in the state system are often helpful in discerning the contours of a state supreme court pronouncement. However, we must remember \"that the Illinois Supreme Court is the final authority” on matters of Illinois law “and that an intermediate appellate court decision is not binding evidence of state law in circumstances when it is not a good predictor of what the state's highest court would do in a similar case.\" Williams, McCarthy, Kinley, Rudy & Picha v. Northwestern Nat'l Ins. Group, 750 F.2d 619, 624 (7th Cir.1984). See generally West v. A.T. & T. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183 (1940); White v. United States, 680 F.2d 1156 (7th Cir. 1982). Nor can we follow an intermediate court decision “that is inconsistent with a state supreme court ruling.” Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 272 (7th Cir.1983). We have studied the cases cited by Harvester. We believe that these holdings are fact-specific applications of Tweedy which do not disturb the basic principles of Tweedy and Dunham and which are distinguishable from the facts before us. In short, they are not helpful except inasmuch as they confirm the continued vitality of Tweedy in Illinois. But see Indianapolis Airport Auth. v. American Airlines, 733 F.2d 1262, 1272 (7th Cir.1984) (federal court may follow state intermediate appellate court decision declining to follow old state supreme" }, { "docid": "11170819", "title": "", "text": "to rely upon, predicted New Jersey’s interpretation of a technical provision of underinsured motorist coverage. Thereafter, but before the appeal was heard by the Third Circuit, the New Jersey Appellate Division issued an opinion on precisely the same question, reaching the opposite result from the District Court. In these circumstances, the Third Circuit reversed, following the reasoning of the state’s intermediate court. Id. at 149-50. When the highest state court has not addressed specifically an issue of state law, the United States Supreme Court has held that the intermediate court decisions may be applied by the federal court unless that court is convinced by other persuasive data or convincing evidence that the highest court of the state would decide otherwise. See Six Companies v. Joint Highway Dist., 311 U.S. 180, 188, 61 S.Ct. 186, 188, 85 L.Ed. 114 (1940). Indeed, the Supreme Court in another opinion held that a decision of the former Chancery Court in New Jersey “should be followed in the absence of an expression of a countervailing by the State’s highest court.” Fidelity Union Trust Co. v. Field, 311 U.S. 169, 178, 61 S.Ct. 176, 178, 85 L.Ed. 109 (1940). On the same day, in a third opinion, the Supreme Court held that “this is the more so where ... the highest [state] court has refused to review the lower court’s decision____” West v. American Tel. & Tel., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). Currently, there are six decisions of the New Jersey Superior Court, Appellate Division, holding that punitive and consequential damages are not available for bad faith refusal of an insurance claim. However, there are two federal decisions reaching the contrary conclusion. As noted above, the first court to decide this issue was the Third Circuit. In Polito v. Continental Casualty Co., 689 F.2d 457 (3d Cir.1982), the Court held that the trial judge should have charged the jury on consequential damages in an insurance dispute. Id. at 464. The basis for this opinion, however, was an analysis of general contract principles and New Jersey decisions interpreting the duty" }, { "docid": "9434222", "title": "", "text": "commonly accepted and acted upon by the bar and inferior courts which are nevertheless laws of the state although the highest court of the state has never passed upon them. In those circumstances a federal court is not free to reject the state rule merely because it has not received the sanction of the highest state court, even though it thinks the rule is unsound in principle or that another is preferable. State law is to be applied in the federal as well as the state courts and it is the duty of the former in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a different rule, however superior it may appear from the viewpoint of “general law” and however much the state rule may have departed from prior decisions of the federal courts. Where an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise. West v. American Telephone & Telegraph Co., 311 U.S. 223, 236-37, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). See also Wine Imports, Inc. v. Northbrook Property & Casualty Insurance Co., 708 F.Supp. 105, 106 (D.N.J.1989) (despite a contrary decision by the Third Circuit, district court followed Appellate Division decision on the availability of punitive damages under state law, given “ ‘the absence of an expression of a countervailing view by the State’s highest court’ ”) (quoting Fidelity Union Trust Co. v. Field, 311 U.S. 169, 178, 61 S.Ct. 176, 179, 85 L.Ed. 109 (1940)); Pipon v. Burroughs-Wellcome Co., 532 F.Supp. 637, 639 (D.N.J.) (refusing “not to consider itself bound by the Appellate Division cases, and to forecast that the Supreme Court of New Jersey would rule otherwise”), aff'd without opinion, 696 F.2d 984 (3d Cir.1982); Copeland v. Johns-Manville Products Corp., 492 F.Supp. 498, 501-02 (D.N.J.1980) (even though district" }, { "docid": "2450403", "title": "", "text": "have never articulated what constitutes “persuasive data,” permitting a federal court to disregard an intermediate appellate court’s holding on a question of state law. We take this opportunity to set forth some guidelines. Generally, only if the decision of a state’s intermediate court cannot be reconciled with state statutes, or decisions of the state’s highest court, or both, may a federal court sitting in diversity refuse to follow it. When an intermediate state court decision is at odds with an existing statutory scheme or one amended after issuance of the intermediate court’s decision, a federal court may justifiably surmise that the statute presents persuasive data that the state’s highest court would not follow the intermediate court’s decision. See, e.g., J & R Ice Cream Corp. v. California Smoothie Licensing Corp., 31 F.3d 1259, 1271-73(3d Cir.1994); Ground Air Transfer, Inc. v. Westates Airlines, 899 F.2d 1269, 1275 (1st Cir.1990) (alternative holding). Similarly, the holdings of a state’s highest court that undermine the rationale of an intermediate appellate court decision may constitute such persuasive data, see Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482-83 (9th Cir.1986); this is so even if a state supreme court holding antedates the inferior court’s opinion. See Humphrey v. C.G. Jung Educ. Ctr., 624 F.2d 637, 643 (5th Cir.1980) (alternative holding). However, a federal court must closely scrutinize the assertedly conflicting statutory schemes or supreme court decisions to satisfy itself that they truly do undermine an intermediate appellate court decision directly on point. See, e.g., Gates Rubber Co. v. USM Corp., 508 F.2d 603, 606-15 (7th Cir.1975). A federal court can depart from an intermediate court’s fully reasoned holding as to state law only if “convinced” that the state’s highest court would not follow that holding. West, 311 U.S. at 237, 61 S.Ct. 179; cf. United States v. Ramos, 39 F.3d 219, 221-22 (9th Cir.1994) (an intermediate court’s totally unexplained holding may merit less deference). Accordingly, a federal court cannot refuse to follow an intermediate appellate court’s decision simply because it believes the intermediate court’s decision was wrong, bad policy, or contrary to the majority rule" } ]